3)i3375 
./1 5(59 


A5G-S 


Court  of  Common  plca^. 


The  Chorch  of  the  United  Brethren  in  Christ 

vs. 

The  Seceders  from  Said  Church. 


BRIEF  OF  GUNCKEL  &  ROWE, 

IN  BEHALF   OF  PLAINTIFFS. 


U.  B.  Publitihiug  House,  Dayton,  O. 


i  IJhraty 


-^1925 


Ho 

J 


RT.OF  Common  pleas. 


The  Church  of  the  United  Brethren ^) 
IN  Christ  ( 

vs.  I 

The  Seceders  from  Said  Church.  ) 


Memoranda  of  facSts, 
law,  etc.,  in  behalf  of 
Plaintiffs  in  the  several 
cases  brought  to  quiet 
title,  etc. 


Justice  Davis,  in  U.  8.  vs.  U.  P.  Railway  Co.,  91  U.  S.,  72-9, 
said:  "Courts  in  construing  a  statute  may,  with  propriety, 
recur  to  the  history  of  the  time  when  it  was  passed,  and  this 
is  frequently  necessary  in  order  to  ascertain  the  reason,  as  w^ell 
as  the  meaning,  of  particular  provisions  in  it." 

For  the  reason  stated,  and  because  it  will  throw  light  upon 
the  questions  here  in  controversy,  let  us  in  the  beginning- 
look  at 

A    LITTLE    CHURCH    HISTORY. 

Historians  of  the  Church  seek  to  trace  its  history  back  to 
the  Waldenses  and  United  Brethren  in  Bohemia;  however  this 
may  be,  the  movement  in  the  United  States  began  about  1789, 
and  was  cotemporaneous  with  that  of  Whitefield  and  Wesley 
in  Old  England  and  Jonathan  Edwards  in  New  England.  It 
was  an  oif'-shoot  from  the  German  Reformed  and  Mennonite 
churches.  Otterbein,  Boehm,  and  Guething,  who  preached  in 
German  only,  were  the  leaders,  and  may  be  regarded  as  the 
founders  of  the  Church.  For  a  time  no  definite  name  was 
assumed,  but  they  were  known  sometimes  as  Die  FrelheUs 
Lente   (The   Liberty   People),   Die   Briider  (The   Brethren), 

1 


b/ 


etc,  but  finally  they  adopted  the  name  held  ever  since,  "  Tlic 
United  Brefln-cii  in  C/irisf."''  They  looked  to  the  Bible  alone 
for  doctrine  and  disci])line,  and  tried  to  follow  in  practice  the 
primitive  church.  The  proncninced  features  were  freedom, 
unsectarianism,  greater  spirituality,  what  w^as  called  experi- 
mental religion,  and  plain  living.  Preachers  received  no  pay 
and  accounted  for  and  turned  over  all  collections,  and  even 
presents,  to  the  C'hurch  for  cliarital)le  work. 

The  first  annual  conference  was  held  at  Peter  Kemp's  farm 
house,  near  Frederick,  Maryland,  in  September,  1780,  and  for 
ten  or  more  years  the  conferences  were  held  at  farm  houses, 
and  the  church  meetings,  for  the  most  i)art,  in  barns  or  the 
open  air,  showing  the  plain  habits  of  both  preachers  and  peo- 
ple. During  the  first  fifteen  years  of  its  work,  the  Church  had 
no  constitution,  no  confession  of  faith,  no  discipline,  not  even 
a  roll  of  members. 

See  Spayth's  History  U.  B.  Church,  pp.  82,  157: 
Lawrence's  History  U.  B.  Church,  pp.  287,  288,  301.  :U9; 
Drury's  Life  of  Otterbein.  p.  272,  ef  seq. 

The  first  General  Conference  was  held  in  a  humble  house 
near  Mt.  Pleasant,  Pennsylvania,  on  the  6th  of  June,  1815. 
The  proceedings  were  conducted  in  German  and  i>rinted  in 
German  only.  Although  comjjosed  of  oidy  fourteen  members, 
all  i)reacliers,  it  assumed  and  seemed  authorized  to  repre- 
sent and  legislate  for  the  whole  Church  in  the  United  States. 
Among  other  things,  it  agreed  upon  a  confession  of  faith  and 
discipline  and  modestly  presented  them  to  the  Church  for  ob- 
servance. 

In  the  earliest  Discipline  preserved  is  this  statement:  "These 
(members  of  Conference  1815),  after  mature  deliberation,  found 
it  to  be  necessary,  good,  and  beneficial  to  deliver  the  following 
doctrines  and  rules  of  discipline  to  the  society  in  love  and 
humility,  with  the  sincere  desire  tliat  tliey,  with  the  word  of 
God,  might  be  attended  to  and  strictly  observed." 

See  Discipline,  1819,  Hist.  Soc.  Doc.  198,  p.  15. 

In  a  later  one  the  statement  is  modified  thus:  "The  Confer- 
ence met  and,  after  mature  deliberation,  presented  to  the  breth- 


ren  the  following  doctrine  and  discipline,  with  the  sincere  desire 
that  these  doctrines  and  rules,  with  the  word  of  God,  should  be 
observed." 

See  Doc.  201  U.  B.  Historical  Soc,  p.  7. 

From  the  beginning,  all  the  laws  of  the  Church,  including 
confession,  rules  of  conduct  for  both  preachers  and  members, 
etc.,  were  included  in  one  book,  marked  "Discipline."  In  some 
of  them  the  discijjline  proper  is  put  as  section  2  of  the  confes- 
sion of  faith,  and  in  the  later  books  the  confession  and  disci- 
pline are  j^laced  together  and  numbered  as  chapters  1,  2,  and 
3,  etc.,  and  apjDarently  as  matters  of  equal  authority.  Even  the 
Discipline  of  1885  uses  the  word  "discipline"  as  comprehend- 
ing both  the  doctrines  and  rules  of  the  Church. 

There  is  not  a  word  in  the  confession  of  faith  and  discipline 
then  adopted  about  slavery,  secret  societies,  or  the  manufacture 
and  sale  of  spirituous  licpiors. 

See  Doc's  198,  2Ul,  etc.,  U.  B.  Historical  Soc. 

Also  Lawrence's  History  of  U.  B.  Church,  pp.  41,  42  and  43. 

This  Conference  provided  for  annual  and  quarterly  confer- 
ences, and  for  a  General  Conference,  to  be  held  every  four 
years,  composed  of  representatives  from  the  several  annual 
conferences,  and  made  tlie  highest  judicatory  of  the  Church 
and  empowered  to  suj)ervise  the  whole  denomination,  review 
the  action  of  the  annual  conferences,  elect  superintendents 
(bishops),  and  make  such  rules  and  regulations  as  the  prog- 
ress of  the  cause  iin'(//ii  re(jKire. 

See  Lawrence's  History  U.  B.  Church,  p.  56. 

In  the  third  General  Conference,  held  in  1821,  the  anti- 
slavery  clause  was  added  to  the  discipline,  and  another  clause 
prohibiting  both  preachers  and  members  from  carrying  on 
distilleries,  and  recommending  them  all  to  labor  against  the 
evils  of  intemperance. 

See  record,  beiny  the  first  Conference  of  which  the  proceedings 
are  preserved,  p.  17. 

The  proceedings  of  the  General  Conference  were  first  printed 
in  1865.  For  those  between  1821  and  1865,  we  must  dejjend  on 
'the  original  records. 


The  fourth  General  Conference  changed  the  discipline  and 
polity  of  the  Ohnrch  wynm  the  subjects  of  baptism,  itineracy, 
admission  of  candidates  to  the  ministry,  communion,  etc.,  and 
for  the  first  time  ])rovided  for  an  English  secretary  and  Eng- 
lish printing. 

See  proceeding's  Conference  of  1825.  pp.  11),  '20  and  '22. 

The  tifth  (k'lieral  Conference,  which  met  in  1829,  adopted 
the  first  declaration  against  oaths  in  court,  or  elsewhere,  and 
favoring  affirmations  in  their  stead.  This  was  aimed  at  Free 
Masonry.  The  Morgan  e})isode  was  in  18'26,  and  the  anti- 
Masonic  excitement  which  followed  resulted  in  making  it  not 
only  a  social,  but  a  political  question.  The  action  of  the  Gen- 
eral Conference  was  manifestly  the  result  of  this  temporary 
excitement. 

See  Conference  proceedings  1821),  p.  25. 

As  showing  the  absolute  power  of  the  General  Conference 
over  the  Church,  the  following  resolution,  adopted  at  this  Con- 
ference, is  given:  "Resolved,  That  hereafter  none  of  our  breth- 
ren, whether  preacher  or  member,  shall  l)e  allowed  to  publish  a 
book  or  pamphlet  without  permission  from  an  ainiual  confer- 
ence." 

See  Conference  proceedings,  p.  26. 

We  venture  the  assertion  that  a  more  arbitrary  rule  was 
never,  before  or  since,  adopted  by  any  church  authority. 

In  Conference  of  1833  the  question  was  raised:  "Does  the 
General  Conference  possess  any  power  which  an  annual  con- 
ference does  not?"  To  this  the  following  answer  was  given: 
"Yes;  it  is  alone  in  the  jjower  of  the  General  Conference  to 
elect,  from  among  the  elders,  one  or  more  lushops,  and  to 
make  such  provisions  as  may  be  conducive  to  the  good  of  the 
whole  (Church.  Provided,  however,  that  none  of  her  acts  shall 
be  so  construed  as  to  (iHci-  flic  ronfcssion  of  faifh,  ov  in  (iiitj 
wdnncv  chdiKjc  Ihc  itic<iiilii<i.  sjiiril,  rules,  (uid  rcyiihdioiis  of 
our  <liscii>liiic  )is   llicij   iioir  .s7rn/J." 

Proceedings  of  Conference  1833,  pp.  29  and  ;^0. 

It  is  worth  noting  that  the  restriction  as  to  the  disci})line  is 
more  strict  and  rigid  than  that  as  to  the  confession  of  faith. 


Neither  were  to  he  altered,  "but  the  discipline  is  not  to  be  in 
"any  manner  changed" — "neither  its  rnles  nor  regulations;" 
nor  even  its  "meaning  or  spirit  as  it  now  stands." 

And  yet  this  very  Conference  changed  the  discipline  and 
made,  as  we  have  seen,  a  new  rule  against  secret  societies,  one 
of  the  most  important  ever  adopted  in  the  Church,  and  out  of 
which  has  grown  most  of  its  troubles  and  the  secession  that 
led  to  the  present  litigation.  Each  Conference  following  made 
further  changes  and  additions — some  of  them  radical— so  that 
the  Discipline  has  itself  grown  from  twenty-eight  pages  in  1819 
to  one  hundred  and  forty-four  pages  in  1885. 

Indeed  every  General  Conference  from  the  first  has  adapted 
itself  to  the  exigencies  of  the  time,  and  made  such  changes  in 
discipline  and  jjolity  as  seemed  necessary  and  proper.  From 
the  beginning,  the  United  Brethren  Church  has  been  an  aggres- 
sive and  progressive  one,  and  to  this  is  largely  due  its  wonder- 
ful growth  and  prosperity. 


Conetitution  of  1837. 

For  nearly  forty  years  and  up  to  1837  the  Church  had  no 
constitution.  In  the  seventh  General  Conference,  which  met 
in  Germantown,  in  this  county,  Eev.  William  Ehinehart,  al- 
though not  a  member,  but  only  secretary  of  the  Conference, 
presented  a  draft  of  one,  which  was  considered,  amended  and 
adopted,  all  in  one  day. 

See  particularly  prot-eedinj^s  of  this  Conference,  p.  66.  original 
record  of  proceedings. 

There  was  no  mention  of  slavery  or  secret  societies  in  it, 
and  it  provided  for  amendment  as  follows:  "No  General  Con- 
ference shall  have  power  to  alter  or  amend  the  foregoing  Con- 
stitution, except  it  be  by  a  roic  of  tiro  thirds  of  f/iaf  hod >/.''' 

See  Discipline  of  1837,  being  No.  262  of  U.  B.  Historical  Society, 
p.  14. 

But  this  action  seems  to  have  been  regarded  at  the  time  as 
only  a  recommendation,  and  conditioned  upon  final  adoption  by 
the  Church  itself. 


Ill  the  iiiinutes  of  the  proceedings  of  this  Conference  we 
find  the  following  authorized  statement:  "In  the  adoption  of 
this  constitution  the  Conference  were  well  ai)prised  that  they 
had  transcended  the  right  allowed  them  l)y  discipline,  in  view 
of  which  a  motion  was  presented  by  Bishoj)  Heistand  that  a 
committee  of  two  be  appointed  to  write  and  present  to  Confer- 
ence now  in  session  a  circular  in  relation  to  the  constitution 
just  adopted,  informing  the  constituents  of  this  body  that  a 
memorial  will  be  presented  to  the  next  General  Conference 
praying  for  the  ratification  of  the  same  according  to  article  4 
section  2."     (Journal  of  General  Conference  of  1837. ) 

See  Conference  proceedings,  p.  06. 

See  Driiry's  Life  of  Glossbrenner,  p.  88,  etc. 

It  will  be  noticed  that  here  again  the  discipline  is  regarded 
as  the  highest  law  of  the  Church. 

Says  Lawrence,  page  323,  volume  2:  "The  Conference,  how- 
ever, did  not  regard  its  action  as  final  or  as  at  all  binding  on 
the  Church.  The  delegates  had  not  l)eeii  instructed  to  make 
a  constitution;  and  recognizing  themselves  as  only  the  repre- 
sentatives and  servants  of  the  Church,  they  caused  the  instru- 
ment to  be  printed,  accompanied  by  a  circular,  calling  the 
attention  of  the  Church  to  the  same,  asking  that  the  dele- 
gates to  the  General  Conference  of  1841  be  instructed  to 
adopt,  amend,  or  reject  the  same." 

The  circular  was  as  follows: 

CIRCULAR. 

To  tin'  Mi'inhcru  (if  the  Cliiirch  of  tlie  United  Brethren  in  Vlirist  thronyli- 
ont  these  I 'n ited  States: 

Dear  bretliren,  by  whose  Huthority  we,  as  a  General  Conference,  liave 
been  autiiorized  to  legislate  on  matters  pertaining  to  the  government  of 
our  ohur(;h,  and  having  long  since  been  convinced  of  the  great  necessity 
of  a  constitution  for  the  better  regulation  thereof,  have,  by  unanimous 
consent,  Traniod  and  established  the  foregoing: — We  are  well  aware  tluit 
we  have  transcended  the  bounds  given  us  by  our  discipline,  which  will  be 
found  in  the  constitution,  article  IV,  section  2,  declaring  that  the  said 
constitution  can  neither  be  altered  nor  amended  without  a  majority  of  two 
tliirds  of  a  Cieneral  Conference.  If  there  had  been  a  general  notice  given 
to  the  Church  i)revi()us  to  the  election  of  delegates  that  there  would  be  a 
memorial  offered  to  General  Conference,  praying  them  to  adopt  a  consti- 


tution,  and  to  ratify  it  agreeably  to  article  IV.,  section  2,  then  the  General 
Conference  would  have  had  full  power  to  have  done  so.  The  object  of  this 
circular  is  (feeling  that  the  government  of  our  church  is  not  as  firm  as  it 
ought  to  be)  to  give  notice  to  our  church  throughout  the  Union  that  we 
intend  to  present  a  memorial  to  the  next  General  Conference,  praying 
them  to  RATIFY  THE  CONSTITUTION  NOW  ADOPTED,  according  to  article  IV., 
section  2,  in  testimony  of  our  ardent  desire  *for  the  welfare  of  our  church, 
and  the  general  spread  of  the  gospel. 

Written  by  order  of  General  Conference.  Germantown,  Ohio,  May  12, 
1837. 

Signed  in  behalf  of  the  same  by 

William  R.  Rhinehart,  Sec'y- 

The  loose  statement  and  nneertain  language  of  this  circular 
left  the  Church  in  doubt  as  to  what,  if  anything,  was  submitted, 
some  claiming  it  was  only  article  IV.;  others,  the  whole  con- 
stitution. Again,  some  claimed  the  constitution  took  effect 
after  its  adoption  by  the  Conference;  others  urged  it  w^as  not 
valid  until  ratified,  and  was  to  be  regarded  as  a  mere  recom- 
mendation, or  at  best  a  statute  only.  Many,  both  of  the  clergy 
and  membershiio,  were  opjjosed  to  any  Constitution.  They 
claimed  it  had  never  been  asked  for,  never  authorized,  and 
as  a  matter  of  fact,  was  not  wanted.  Certainly  it  was  never 
voted  upon;  never  ratified;  never  really  submitted  for  ratifi- 
cation. And  so  the  four  years  passed,  and  the  delegates  were 
elected  to  the  next  Conference  irif/ionf  (iiii/  rcfcrciire  fo  flic  roii- 
sfifiifioii  (nid  in'flioiif  iiish'iicfioii>^  (jr  aiiihoritij  as  fo  ifs  (lifopfloii 
or  (nit<'U(t))i<'iif,  much  less  to  the  formation  and  adoption  of  a 
new  constitution. 

See  Spayth  and  Liawrence,  as  also  Drury's  Lives  of  Otterbein 
and  Glossbrenner  on  conferences  of  1837  and  1841. 

But  in  the  meantime  this  constitution  of  1837  was  printed  and 
placed  in  the  Discipline  as  "the  constitution,"  and  obeyed  by 
the  Church  as  strictly  and  fully  as  that  which  superseded  it. 


^be  Conetitution  of  1841, 

When  the  General  Conference  of  1841  met  it  did  not  ratify 
or  even  consider  the  question  of  ratifying  the  constitution  of 
1837.  No  memorial,  as  contemplated  by  the  circular,  was  re- 
ceived from  the  former  or  any  conference,  or  from  any  person 


8 

in  l)elialf  of  eitlier.  But  of  its  own  motion  the  Conference 
took  lip  the  (question.  It  debated  for  two  days  whether  it 
would  have  any  constitution,  and  finally  decided  by  a  vote 
of  yeas  15,  nays  7,  to  make  one,  referring  the  whole  subject 
to  a  committee,  which  reported  a  neic  constitution.  While  it 
largely  followed  the  constitution  of  1837,  it  changed  it  in  sev- 
eral important  respects  and  added  the  sections  upon  slavery 
and  secret  societies  and  changed  the  clause  jn'oviding  for 
amendments,  so  that  instead  of  permitting  amendments  by  a 
vote  of  the  General  Conference,  it  declared  that  "there  shall 
be  no  alteration  unless  by  request  of  two  thirds  of  the  wdiole 
society." 

//  icds  fcdllij  (I  iicir  coiisfifnlioii,  but  the  remarkable  and 
undisputed  fact  is  that  //  iras  ncrcr  i-afijicd  hij  the  Cliiircli: 
iicrcr  subiiiHtcd  to  the  nicii/hcrs  for  coiisidcrofioii  or  rafificdiioii. 

We  are  surprised  to  find  that  Judge  Lawrence,  in  his  "Pro- 
fessional Opinion,"  repeats  the  claim  that  the  delegates  to  the 
Conference  of  1841  were  "elected  in  view  of  the  fact  that  they 
were  to  adopt,  amend,  or  reject  the  constitution  of  1837,  or 
make  a  new  one;"  and  again  that  "they  were  elected  for  the 
purpose,  among  other  things,  of  making  a  constitution."  We 
beg  the  court  to  note  the  proof  of  these  astounding  statements, 
to-wit:  That  Dr.  Davis  says  that  some  laymen,  who  happened 
in  the  Conference,  heard  a  delegate  make  such  a  statement! 
Soiiichodi/  sfrijs  soiiichod//  heard  soiiichodij  soij  so!  And  this 
upon  a  grave  (^[uestion  of  the  validity  of  a  constitution.  With 
all  deference  to  our  learned  friend,  we  must  say  that  flic  osscr- 
lioii  is  innrorraidcd  oiid  irliolli/  iiidriic. 

Ecpially  unfounded  are  several  statements  as  to  lioir  the 
constitution  was  adopted,  which  are  fully  answered  by  a  ver- 
batim report  of  the  whole  official  record  as  found  in  the  Cow- 
ference  proceedings,  as  follows: 

"A  motion  was  offered  by  E.  Vundemark  that  a  constitution  for  the 
better  ref,'uhition  of  the  Chnn.-h  be  adopted.  Much  dis(Uission  ensued. 
After  prayer.  Conference  adjourned.  *  *  *  'ri,e  motion  for  a  consti- 
tution was  called  uj).  A  si)irited  discussion  ensued.  The  vote  being 
taken,  it  carried  in  favf)r  of  a  constitution     yeas  15,  nays  7." 

"On  motion  of  J.  Owns,  a  (X)mmittee  of  nine  was  appointed  to  draft 
a  constitution,  whereupon,  J.  Russell,  J.  J.  Glossbrenner,  George   Miller, 


9 

Alexander  Biddle,  H.  G.  Spayth,  J.  Montgomery,  Wm.  Davis,  H.  Bone- 
brake,  and  H.  Kumler  were  appointed  (one  from  each  conference)  by 
ballot.  Conference  adjourned  till  the  committee  should  be  prepared  to 
report." 

AFTERNOON   SESSION. 

"Conference  met  at  four  o'clock;  committee  on  constitution  made  a 
report,  which,  being  distinctly  read  twice,  on  motion  was  laid  on  the 
table  until  to-morrow  morning." 

MAY  13th. 

"Conference  met.  After  prayer  the  constitution  was  read  the  third  time 
by  sections,  and  adopted  in  the  words  following:  "  [Here  followed  the  con- 
stitution.] 

See  Conference  proceedings,  pp.  80,  81. 

Tills  Is  the  whole  record.  It  sliows  the  Conference  claimed 
no  special  power;  did  not  take  up  the  subject  as  unfinished 
business  or  pretend  to  adoj^t  or  ratify  a  former  constitution, 
but  took  up  the  subject  dc  iioro  and  assumed  the  responsibility 
without  any  pretence  of  any  specially  delegated  power. 

This  Conference,  which  assumed  to  make  an  unalterable 
law  for  the  Church,  was  composed  of  only  ficenfy-f/ircc  dele- 
(jafcs,  ALL  PREACHERS.  The  membership  had  neither  voice  nor 
vote  in  this  Conference,  nor  opportunity  to  vote  in  approval  or 
disapproval  of  its  work.  It  had  sent  no  petitions,  had  made  no 
request  for  a  constitution,  given  no  authority  to  the  members 
of  the  Conference  to  make  an  organic,  much  less  an  iinaJicrdhlc, 
Idir  for  the  Church.     This  leads  us  to  inquire: 

What  is  (I  cotisfifufioii?  Avxl  lioir  rwc  consiifiifioiis  iikkIc? 
And  irlwrciii  (liffcrciif  from  sfatufcs? 

These  questions  were  asked  and  answered  in  Vanhorne  vs. 
Dorrance,  2  Dall  (U.  S. ),  308: 

"It  is  the  form  of  government  deli ii<'(t fed  />//  f/ic  iiii<//dij  //(iiid 
of  ihe  iwoplc,  in  which  certain  first  principles  of  fundamental 
laws  are  established.  The  constitution  is  certain  and  fixed;  // 
conf((ins  the  iwi-maneid  ivill  of  flie  peojile,  and  is  the  supreme 
law  of  the  land;  //  is  jxurimouid  to  ihe  poiver  of  the  legislafin-r, 
and  can  he  rcrokcd  or  fdfcrcd  oidi/  />//  fJic  aidJiorifij  flird  )ii(ide 
//.  TJie  lif('-(/ti'i)ig  princij)J('  and  flu-  dcafli-doing  stroke  must 
proceed  from  flie  same  hand.  What  are  legislatures?  Crea- 
tures of  the  constitution;  they  owe  their  existence  to  the  con- 


10 

stitutiou;  tliey  derive  their  powers  from  the  constitution.  It 
is  their  commission,  and  therefore  all  their  acts  mnst  be  con- 
formable to  it,  or  else  they  will  be  void.  The  constitution  is 
their  original,  sovereign,  and  unlimited  capacity.  Law  is  the 
n'orlx  or  irill  of  the  Icj/isUifiirc  in  their  derivative  and  subordi- 
nate capacity.  T/ic  otic  is  f/ir  trork  of  flic  crcofor,  ami  flic  of  her 
of  flic  crcofiircy 

"According  to  the  American  iisage,  the  word  'constitution' 
is  used  to  designate  the  written  instrument  ai/rccd  upon  hij  flic 
jx'opic  of  ffic  Union  Of  of  (i  jxniiciifdr  Sfofc  as  the  absolute 
rule  of  action  and  decision  for  all  departments  and  officers  of 
the  government  in  res]3ect  to  all  the  points  covered  by  it,  which 
must  control  until  //  s/ioll  l)c  c/iaiii/cd  hfj  ftic  inifliorifij  ir/iicli 
cslohlislicil  if.'" 

1  Story  on  Cons.,  338,  et  seq. 

Cooley  on  Constitutional  Limitations,  3. 

People  vs.  N.  Y.  Central  R.  R.,  24  N.  Y..  48G. 

"A  constitution   is  not  operative   iiiifil  ils  (i(loj)fion  hif  flic 

people." 

Parker  vs.  Smith,  3  Minn,,  240. 

State  vs.  New  Orleans,  29  La.,  Ann  863. 

Cooley  on  Constitutional  Limitations,  32. 

We  ask  the  especial  attention  of  the  court  to  two  important 
cases  covering  this  question,  decided  by  the  supreme  court  of 
Pennsylvania.  The  legislature  in  1871-2  authorized  a  vote  for 
the  call  of  a  convention  to  revise  the  constitution,  and  the  peo- 
ple not  only  voted  to  call  the  convention,  but  elected  the  dele- 
gates therefor.  The  (question  was  raised  as  to  the  validity  of 
the  constitution  afterward  framed  by  this  convention,  and  the 
court  saj's: 

"The  convention  called  under  the  acts  of  1871-2  could  not 
take  from  the  peoi)le  tlieir  sovereign  right  to  ratify  or  reject 
the  con.stituti(m  or  ordinance  formed  by  it,  and  could  not  in- 
fuse life  or  vigor  into  the  work  before  ratification  by  the 
people." 

See   learned  oinuioii   in  these  cases   rendered  by  Chief  Justice 

Agnew. 
Wells  vs.  Bain,  75  Pa.,  St.  40. 
Woods'  Appeal,  75  Pa.,  St.  59. 


11 

But  it  is  urged  by  Counsel  for  defendants,  that  in  several  of 
the  States  the  constitutions  were  never  ratified  by  the  people. 
Judge  Jameson,  in  his  valuable  work  on  "Constitutional  Con- 
ventions," says  that  since  the  foundation  of  our  government  one 
hundred  and  fifty-seven  conventions  have  framed  constitutions, 
of  which  number  one  hundred  and  thirteen  were  submitted  to 
the  people  for  ratification  and  forty-four  were  not.  But  he 
shows  that  of  the  latter  many  were  adopted  during  the  Revolu- 
tionary period,  when  submission  was  either  impossible  or  im- 
practicable; that  some  were  merely  revising  conventions  and 
acting  under  authority  of  law;  that  in  others  the  constitutions, 
although  not  formally,  were  substantially  submitted  and  rati- 
fied; and  that  in  all  of  them  the  conventions  which  formed  the 
constitutions  were  specially  called  for  that  jjurpose,  and  the 
delegates  were  elected  by  the  people  with  special  reference 
thereto.  Among  the  non-submitting  conventions  is  that  of 
1802  in  Ohio,  but  it  is  worthy  of  note  that  both  the  later  con- 
stitutions were  submitted  and  ratified  by  the  people.  Since 
the  Kansas  trouble,  in  1855-9,  Congress  has  provided  in  its 
enabling  acts  that  the  territories  must  submit  their  constitu- 
tions to  the  people  for  ratification. 

"All  this,"  says  Jameson,  "makes  it  evident  that  the  pre- 
vailing sentiment  of  the  country  -from  the  earliest  times  has 
favored  the  submission  of  constitutions  to  the  people,  even  in 
cases  when  the  conventions  were  authorized  by  law  to  frame 
constitutions  and  specially  called  and  elected  for  that  purpose." 

See  Jameson's  Cons.  Conv.,  pp.  494,  505. 

But  it  is  said,  if  not  actually  ratified  by  the  membership,  it 
became  ralid  hi/  f/ic  iiin'rcrsril  nrquicsccncr  of  flic  CJinrcli  flicrclo, 
and  that  all  who  have  joined  the  Church  since  1841  have  tacitly, 
if  not  expressly,  assented  thereto,  and  so  the  Constitution  of 
1841  is  founded  upon  a  compact. 

Jameson  says,  that  as  a  matter  of  fact  "no  ronsiiiiiiloii  crer  so 
origiiiafcd,''  and  adds :  "To  say  that  the  constitution  is  based  upon 
consent  is,  in  my  view,  as  absurd  as  to  attribute  to  the  consent  of 
its  component  particles  the  structure  and  functions  of  a  plant. 


12 

Doubtless  those  particles  acquiesce,  antl  if  they  were  sentient 
beings,  with  conscience  and  will,  that  acquiescence,  without 
ceasing  to  be  determined  by  natural  laws  and  forces,  might  be 
denominated  consent.  So  the  acquiescence  of  great  societies 
or  races  in  the  founding  of  government  and  dynasties  is  only 
by  a  figure  of  speech  to  be  called  their  consent;  it  is  rather 
resignation  to  the  action  of  forces  which  they  have  neither 
ability  nor  desire  to  countervail.  The  human  race  have  always 
acquiesced  in  the  revolution  of  the  earth  about  the  sun;  they 
have  sat  down  to  study  its  causes,  and  recognized  with  thank- 
fulness its  accruing  advantages;  no  faction,  so  for  as  history 
shows—  the  church,  perhaps,  in  Galileo's  time  excepted — ever 
even  protested  against  it;  but  it  does  not  follow,  therefore,  that 
the  system  of  planetary  motion,  of  which  that  revolution  is  a 
part,  was  founded  on  the  consent  of  the  earth  or  its  inhab- 
itants or  on  a  comj^act  between  them  and  the  residue  of  the 
universe.     *     *     * 

"Hisfori/  records  no  'nisioiicc  in  irlu'cit  such  a  coiiipacf,  as  the 
theory  supposes,  iras  crcr  ukkIc;  and  to  imagine  it  except  for 
the  purpose  of  exposition  or  illustration,  is  as  puerile  as  to 
trace  the  social  union  of  a  swarm  of  bees  to  a  compact  made 
at  some  imaginary  congress,  when  each  bee  was  in  a  'state 
of  nature.'" 

But  as  a  matter  of  fact  there  has  been  no  such  accpiiescence 
in  the  Church,  nor  even  in  the  General  Conference.  It  has 
always  been  an  unsettled  and  a  disputed  question.  The  valid- 
ity of  the  constitution  was  stoutly  disputed  in  Conference  of 
1845;  and  in  tlu^  General  Ccmference  of  1849  there  was  a 
motion  io  sfnkc  llic  coiisfifiilioii  from  ihc  I)isc{j)liii('  Imtohsc 
if  iras  iiirolid,  and  flic  niofion  iros  cnicrfoincd,  (felxdcd  (ni<f 
rofcd  upon.  A  somewhat  similai'  motion  was  made  in  the 
Conference  of  1857.  The  committee  to  whom  the  constitu- 
tion was  referred  on  question  of  revision  reported  in  favor  of 
submitting  it  to  a  vote  of  the  people  for  ratification  or  amend- 
ment, but  the  Conference  refused  to  do  so. 

See  original  Conference  prooeedin^'s  1857,  p.  202. 

In  General  Conference  of  1849  some  petitions  were  pre- 
sented asking  for   lay   representation,   which    could   only  be 


13 

granted  by  a  change  in  the  constitntion.  They  were  referred 
to  the  committee  on  revision,  which  reported  it  was  "inex- 
pedient" to  grant  the  prayer  of  the  petitioners,  and  this  was 
approved  by  the  Conference.  The  same  subject  was  consid- 
ered in  iive  subsequent  conferences,  in  each  of  which  the 
question  of  amending  the  constitution,  by  a  mere  vote  of  the 
Conference  itself,  was  considered,  referred,  reported  upon, 
sometimes  discussed,  and  always  disposed  of  on  ground,  not 
of  right  to  make  the  change,  but  because  of  expediency,  etc. 

See  original  Conference  proceedings  1849,  p.  149,  and  1861,  pp. 

287,  301. 
Also  printed  Conference  proceedings  1869,  pp.  199,  209.  212. 
Printed  Conference  proceedings  1873,  pp.  105, 188,  189,  193,  200. 

Indeed,  in  one  way  or  another,  opposition,  dissent,  and  dis- 
regard of  the  constitution  as  the  fundamental  law  of  the  Church 
have  been  expressed  more  or  less  strongly  in  every  Conference 
since  1841.  The  people  obeyed  it,  not  because  it  was  labelled 
"Constitution,"  but  hccaiisc  it  iras  ]((i(\:  and  they  obeyed  it  no 
more  strictly  than  they  did  every  other  law  made  by  the  Gen- 
eral Conference,  which  they  had  been  taught  to  regard  as  the 
highest  legislative  })ody  and  the  supreme  law-making  power  of 
the  Church. 

See  bishop's  address,  pp.  10,  ll,vl9th  conf.  pro.,  1885. 
Report  of  Standing  Committee  on  Constitution,  pp.  134,  135. 
Also  discussion  thereon,  pp.  141,  168,  173,  175. 

THE  POWER  TO  ENACT  IS  THE  POWER  TO  REPEAL. 

This  brings  us  to  the  important  question:  Did  the  adoption 
of  the  constitution  by  the  Conference  of  1841  make  it  the  para- 
mount law  of  the  Church?  Because  tliey  labelled  it  a  consti- 
tution, does  it  have  any  greater  authority  or  force  than  an 
ordinary  enactment?  Said  Judge  Welch  in  Burt  vs.  Rattle,  31 
O.  S.,  116:  "To  call  a  thing  by  a  wrong  name  does  not  change 
its  nature." 

It  was  passed  with  no  greater  formality  and  by  no  different 
vote  than  were  all  the  other  laws  made  by  the  General  Confer- 
ence; why  then  has  it  any  greater  force  or  validity,  and  why 
may  it  not  be  repealed  or  amended  by  another  Conference?     If 


14 

• 
it  had  been  submitted  to  the  people  of  the  Church  and  ratified 

by  them,  it  could  not,  we  readily  grant,  be  changed,  except  in  the 

way  provided  in  the  instrument.     But  as  it  is  conceded,  that  it 

never  was  submitted  to  a  vote  of  the  Church  and  never  was 

ratified  by  its  members,  why  should  it  have  any  greater  force 

or  authority  than  a  statute?     One  legislative  body  cannot  bind 

its  successor  by  any  requirement  as  to  how  its  enactments  may 

be  amended  or  repealed.      The  power  to  enact  is  a  power  to 

repeal,  and  any  law  passed  may  be  amended  or  repealed  by  the 

same  body  which   enacted  it.      Even  when  a  by-law  requires 

that  no  alteration  of  a  law  shall  be  made  except  by  a  two-thirds 

vote  of  the  members,  yet  the  same  body  by  which  the  by-law 

was  made  may  repeal  it  ])y  a  majority. 

Richards  vs.  Congre'l  Soc'y,  58  N.  H..  187. 
Com.  vs.  Mayor  of  Lancaster,  5  Watts,  152-5. 
Warden's  of  Christ  Ch.  vs.  Pope,  8  Gray,  140-2. 
Bloomer  vs.  Stalley,  5  McLean,  IGl. 
Kellogfir  vs.  Oshkosh,  14  Wis.,  G23. 
Brightman  vs.  Kivner,  22  Wis.,  55. 
Morgan  vs.  Smith,  4  Minn.,  G7. 
Angell  &  Ames  vs.  Corp.,  459. 
Encyclopedia  of  Law,  vol.  3,  691. 
Wall  vs.  State,  23  Ind.,  150. 
State  vs.  Oskins,  28  Ind.,  364. 

The  law,  as  above  stated,  has  been  fully  recognized  by  our 
own  Supreme  Court.  Said  Justice  Bartley:  "The  legislature 
cannot,  at  one  session,  by  the  enactment  of  a  law,  in  any  man- 
ner or  to  any  extent  whatsoever,  limit  or  abridge  the  legislative 
power  vested  in  this  body  at  any  subsequent  session." 

See  Plank  Road  vs.  Husted,  30  S.,  581. 
Also  Harrison  vs.  Doyle,  240  S.,  301. 

POWER    AND    SOVEREIGNTY    OF    GENERAL    CONFERENCE. 

From  1800  to  1885  the  General  Conference  has  assumed  and 
exercised  uncontrolled  power  of  legislation  and  complete  sover- 
eignty over  the  Church.  It  has  made  and  unmade  constitu- 
tions; declared  what  was  and  what  was  not  the  faith  of  the 
Church;  made  disciplines  governing  the  subordinate  confer- 
ences, the  churches,  and  the  conduct  of  both  preachers  and 
members,  and  changed  them  when  and  as  it  pleased;  it  has 
declared  from  time  to  time  what  was  right  and  what  wrong; 


15 

what  lawful  and  what  unlawful;  it  has  made  constitutions  for 
the  missionary  societies,  the  Sabbath-schools,  boards  of  educa- 
tion, etc.,  and  declared  the  provisions  to  be  "the  law  of  the 
Church;"  and  yet  during  all  of  these  years,  covering  nearly 
a  century,  it  has  never,  until  1885,  submitted  a  single  one  of 
these  constitutions,  confessions  of  faith,  disciplines,  laws,  and 
enactments  to  subordinate  conferences  or  to  the  membership 
of  the  Church  for  ratification  or  approval. 

See  Old  Histories  prior  to  1821:  Conference  proceedings  in  Rec- 
ord up  to  1865,  and  printed  Conference  proceedings  up  to  date. 

Whatever  of  validity  or  force  any  of  these  constitutions, 
disciplines,  confessions,  laws  and  enactments  had,  was  derived 
solely  from  the  sovereignty  of  the  General  Conference.  Such 
seems  to  have  been 

THE    U.    B.    THEORY    OF    GOVEKNMENT. 

Says  Judge  Cooley:  "Where,  by  the  theory  of  the  govern- 
ment, the  exercise  of  complete  sovereignty  is  vested  in  the 
same  individual  or  body  which  enacts  the  ordinary  laws,  an 
enactment,  being  an  exercise  of  power  by  the  sovereign  author- 
ity, must  be  obligatory,  and  if  it  varies  from  or  conflicts  with 
any  existing  constitutional  principle,  it  must  have  the  effect  to 
modify  or  abrogate  such  principle,-  instead  of  being  nullified  by 
it.  This  may  be  so  in  Great  Britain  with  every  law  not  in  har- 
mony with  pre-existing  constitutional  principles,  since,  by  the 
theory  of  its  government,  Parliament  exercises  sovereign  au- 
thority, and  may  even  change  the  constitution  at  any  time,  as 
in  many  instances  it  has  done,  by  declaring  its  will  to  that 
effect." 

Cooley  Constitutional  Limitations,  p.  1. 

1  Black  Com.,  161. 

Broom  Const.  Law,  795. 

Fischel  English  Constitution,  b.  7,  c.  5. 

The  constant  exercise  of  a  power  by  the  legislature  from  the 
adoption  of  the  constitution  to  the  present  time  ought  to  be 
deemed  almost  conclusive  evidence  of  its  rightful  possession  by 
that  body. 

State  vs.  Mayhew,  2  Gil  (Md.j,  i87. 


16 

The  Conference  of  lcS37  assumed  to  make  a  constitution; 
that  of  1841  to  supersede  it  with  another;  why  might  not  that 
of  1889  supersede  that  of  1841  with  still  another? 


But  S5uppo6c  ^bc  Conetitution  IDalib, 

As  a  constitution,  shall  article  4  be  construed  so  literally 
and  so  artificially  that  "the  request"  shall  be  made  antecedent 
to  any  action  on  the  part  of  the  General  Conference  looking  to 
alteration?  Just  what  the  twenty-three  preachers,  who  assumed 
to  make  this  constitution,  meant  by  "request"  is  not  easy  to 
determine.  Webster  says  it  is  "the  expression  of  a  desire  to 
some  perscm  for  something  to  be  granted  or  done;"  "a  prayer," 
"fhe  expression  of  a  desire  io  a  superior  heituj,''  and  adds  that 
" it  supj)oses  a  right  in  the  j)erson  requested  to  deny  or  refuse 
to  graidy  This  woidd  make  the  General  Conference  superior 
to  the  people,  the  creature  sujjerior  to  the  creator! 

The  delegates  in  1841  were  largely  Germans  and  unedu- 
cated, and  whether  they  understood  the  full  force  and  mean- 
ing of  the  word  may  be  doubted.  The  Church  was  then  small 
and  mostly  in  rural  districts,  and  it  was  possible  for  the  bishops 
and  preachers  to  personally  know  all  the  members  and  so  learn 
their  opinions  and  wishes.  The  proceedings  in  several  subse- 
cpient  conferences  indicate  that  it  expected  that  the  "request" 
would  be  verbal,  and  when  the  delegates  came  together  at  Con- 
ference they  could  compare  notes  and  determine  whether  or  not 
a  particular  measure  was  or  was  not  requested  by  the  Church. 

But  the  C^hurcli  has  outgrown  its  primitive  garments;  what 
fitted  the  boy  has  become  too  small  for  the' man.  "The  whole 
society"  now  conq)rises  2,(540  churches  and,  the  defendants  say, 
210,000  members.  They  are  scattered  over  the  whole  country, 
from  Maryland  and  Pennsylvania  to  California  and  Oregon, 
including  Canada  and  a  portion  of  the  South,  not  to  speak  of 
some  thousands  in  Germany  and  western  Africa.  How  can  all 
these  make  a  request  known?  It  is  no  longer  possible  to  do  it 
personally.  How  otherwise?  And  how  unite  in  a  two-thirds 
request?     How  consult,  how  act  in  concert,  upon  any  question 


17 

of  alteration?  The  only  mode  snggested  is  by  petitions.  But 
who  has  not  learned  how  unmeaning,  how  unreliable,  how 
worthless  they  are?  So  easily  obtained  and  so  generally  manu- 
factured and  so  rarely  indicating  popular  oxjinion,  they  have 
ceased  to  inlluence  Congress  or  any  legislative  body. 

The  Conference  of  1841  could  not  have  intended  a  construc- 
tion that  would  work  such  inconvenience,  hardship,  and  in- 
justice; that  would  prove  such  an  absurdity.  May  we  not,, 
therefore,  seek  a  more  reasonable  construction? 

Vattel  long  ago  said: 

"Every  interpretation  that  leads  to  an  absurdity  ought  to  be  rejected; 
by  this  is  meant  that  no  such  construction  should  be  put  upon  a  statute 
as  would  lead  to  an  absurd  consequence.  This  rule  is  founded  upon  the 
presumption  that  the  legislature  did  not  intend  an  absurdity;  hence,  as 
that  intention  is  to  be  ascertained,  this  presumption  leads  the  mind  to  the 
conclusion  that  any  construction  which  would  lead  to  such  consequences 
is  not  the  true  one.  By  an  absurdity,  in  the  sense  in  which  we  now  use 
the  term,  we  mean  not  only  that  which  is  physically  impossible,  but  also 
what  is  morally  so.  We  regard  that  to  be  morally  impossible  which  is  con- 
trary to  reason,  or  in  other  words,  that  which  could  not  be  attributed  to  a 
man  in  his  right  senses."' 

Vattel,  book  2,  chap.  17,  sec.  282. 

"Where  a  statute  (and  the  rule  as  to  construction  is  the  same,  whether 
applied  to  constitutional  or  statutory  law),  will  bear  two  interpretations, 
one  contrary  to  plain  sense,  the  other  agreeable  to  it,  the  latter  shall  pre- 
vail. If  words,  literally  understood,  bear  only  a  very  absurd  signification, 
it  is  necessary  to  deviate  a  little  from  the  primary  sense." 

Dwarris  on  Cons,  and  Stat.  Cons.,  p.  — . 

"  In  doubtful  cases,  if  by  giving  a  literal  construction  to  a  statute,  it 
will  be  the  means  of  producing  great  injustice  and  lead  to  consequences 
that  could  not  have  been  contemplated  by  the  legislature,  courts  are 
bound  to  presume  that  the  legislature  intended  no  such  consequence,  and 
give  such  a  construction  as  will  promote  the  ends  of  justice." 

Smith's  Com.  on  Constitutional  and  Statutory  Construction,  695. 

"In  construing  a  clause  of  the  constitution,  if  a  literal  interpretation  of 
the  language  involves  any  absurdity,  contradiction,  injustice,  or  extreme 
hardship,  the  court  may  deviate  a  little  from  the  received  sense  and  literal 
meaning  of  the  words,  and  interpret  the  instrument  in  accordance  with 
what  appears  to  have  been  the  intention  of  its  framers." 

Taylor  vs.  Taylor,  10  Minn.,  107. 

Story  on  Constitution,  p.  141,  145,  157,  and  161. 

2 


18 

CONSTRUCTION    OF   ARTICLE    lY.    AS   TO   AMENDMENT. 

The  Conference  of  1841,  which,  without  any  authority  not 
vested  in  every  other  General  Conference,  exercised  so  much 
freedom  in  altering  the  constitution  of  1887,  we  may  safely 
assume,  did  not  intend  to  prevent  anij  alteration  in  their  own 
work.  The  fact  that  they  carefully  and  specifically  provided 
for  its  alteration,  shows  that  they  anticipated  a  time  when  if 
oiKjhf  io  he,  and  coidd  he,  amended. 

The  constitution  of  1837,  after  which  they  modeled  theirs, 
provided  for  its  amendment  by  a  vote  of  two  thirds  of  the 
General  Conference.  The  evil  sought  to  he  remedied  was  the 
alteration  by  Conference  witJtoiif  ratijicaiion  of  the  jx-ople.  The 
remedy  provided  was  that  fJte  (ilferafioii  roiild  oiihj  he  made  hy 
tiro  f birds  of  ilie  icliole  society.  The  mistake  was  in  using  the 
word  "request,"  wdiicli,  literally  construed,  leads  to  confusion, 
trouble,  hardshij),  and  to  absurdity,  because  it  defeats  the  very 
object  for  which  the  article  was  intended. 

Clearly  what  the  Conference  intended  was  either  the  mode 
indicated  in  several  conferences,  that,  before  any  change  should 
be  made,  the  Conference  be  satisfied  that  it  was  desired  by  two 
thirds  of  the  whole  society,  or  the  usual  and  reasonable  one 
found,  substantially,  in  almost  all  constitutions,  to-wit:  that 
the  constitution  be  not  altered,  except  by  the  consent,  ajjproval, 
or  vote  of  two  thirds  of  the  whole  society. 

And  the  history  of  the  Church  shows  that  this  was  the 
construction  put  upon  it  by  all  the  conferences  which  have 
been  held  since  -  the  earlier  ones  composed  largely  of  the 
same  men  who  sat  in  the  Conference  of  1841. 

"If  there  be  doubt  as  to  the  meaning  of  a  constitutional  provision,  and 
the  body  that  made  the  constitution,  although  at  a  subsequent  meeting, 
and  when  composed  of  different  members,  construes  it,  such  construction 
will  be  accepted  as  the  true  one."  *  *  *  * 

"If  the  sense  of  the  law  being  clear,  there  arise  from  it  inconveniences 
to  the  public  good,  we  must  have  recourse  to  the  Prince,  to  learn  of  him 
his  intention  as  to  what  is  liable  to  interpretation,  explanation,  or  mitiga- 
tion, whether  it  be  for  understanding  the  law,  or  mitigating  its  severity." 

Domat's  Civil  Law,  quoted  by  Smith  in  his  Com.  on  Constitution 
and  Statute  Construction,  G19. 


19 

"Authentic  interpretation  is  that  which  proceeds  from  the  author  or 
utterer  of  the  text  himself.  *  *  *  If  a  legislature  or  monarch  give  an 
interpretation,  it  is  called  authentic,  although  the  same  individual  who 
issued  the  law  to  be  interpreted  may  not  give  the  interpretation.  This 
proceeds  upon  the  reason  that  the  successive  legislators  or  monarchs  are 
considered  as  one  and  the  same,  making  law  and  giving  the  interpretation 
in  their  representative,  and  not  in  their  personal,  character." 

Lieber,  as  quoted  by  Smith,  603  and  604. 

"In  construing  a  statute  the  construction  put  upon  it  by  the  executive 
department,  charged  with  its  execution,  is  entitled  to  great  weight." 

Westbrook  vs.  Miller,  56  Mich.,  148. 
U.  S.  vs.  Philbrick,  120  U.  S.,  52. 
Howell  vs.  State,  71  Ga.,  224. 

"A  constitution  is  not  to  be  interpreted  as  a  private  writing  by  rules  of 
art  which  the  law  gives  to  ascertain  its  meaning,  but  it  is  to  be  studied  in 
the  light  of  ordinary  language,  the  circumstances  attending  its  foundation 
and  the  construction  placed  upon  it  by  the  people,  whose  bond  it  is." 

Chesnut  vs.  Shane's  lessee,  16  Ohio,  599. 
Cronise  vs.  Cronise,  54  Penn.,  255. 

"The  judgment  of  the  highest  court  of  a  State  that  a  statute  has  been 
enacted  in  accordance  with  the  requirements  of  the  State  constitution  is 
conclusive  upon  the  Supreme  Court  of  the  United  States,  and  it  will  not 
be  reviewed  therein." 

Atlantic  vs.  Gulf  R.  R.,  vs.  Georgia,  98  U.  S.,  359. 
Bank  vs.  Bennington,  16  Blath,  C.  Ct.,  53. 
Smith  vs.  Good,  .34  Fed.  Rep.,  204. 


Contcrcuce  action  chanoino  tbe  Confession  of 

ffaitb. 

In  our  short  sketch  of  United  Brethren  Church  history,  we 
have  seen  that  the  confession  of  faith  and  discipline  irere  in 
1815  nwdesil/j  presenied  io  flie  Clnicch,  irifli  ilie  hare  expression 
of  a  desire  that  flieij  be  ohserred,  and  that  for  years  after,  the 
two  were  published  as  different  sections  of  the  same  law,  and 
regarded  as  equally  binding  and  authoritative  upon  the  Church. 

During  the  first  quarter  century  of  the  Church,  the  word 
"discipline"  comprised  both  confession  and  discipline,  and 
there  was  no  prohibition  against  changes  in  either.     Indeed, 


20 

up  to  1833,  it  was  especially  declared  that  the  General  Con- 
ference had  "power  to  alter  or  amend  the  discipline  according  as 
they  may  tind  it  necessary  and  expedient,  "provided  only,  that 
they  do  not  establish  any  article  which  may  tend  to  abolish, 
undo,  or  put  aside  the  itinerant  plan." 

Discipline  of  1819,  Doc.  U.  B.  His.  Soc,  198,  pp.  24,  25. 

BiTt  the  General  Conference  of  1833  made  several  specific, 
material  changes  in  the  confession  of  faith  and  a  dozen  or  more 
in  the  discipline,  and  then  attempted  to  limit  the  power  of  all 
subsequent  general  conferences  by  declaring  that  "none  of  her 
acts  shall  be  so  construed  as  to  alter  the  confession  of  faith  or 
in  any  manner  change  the  meaning,  spirit,  rules,  and  regula- 
tions of  our  discijjline  as  they  now  stand." 
Proc.  Conference  1833,  p.  30. 

In  the  so-called  constitution  of  1837,  this  provision  was 
changed,  and  the  clause,  "Nothing  shall  be  done  to  change  the 
article  of  faith,"  inserted  in  its  stead;  thus  for  the  first  time 
making  a  distinction  between  it  and  the  discipline.  This  was 
followed  by  the  Conference  of  1841,  which  went  a  step  farther, 
and  put  into  the  constitution  the  words,  "No  rule  or  ordinance 
shall  at  any  time  be  passed  to  change  or  do  away  the  confession 
of  faith  as  it  now  stands." 

Let  us  stop  to  inquire  what  this  provision  means.  Counsel 
for  defendant  tell  us,  it  means  that  the  confession  of  faith,  as 
then  made,  may  never  be  altered  or  amended;  never  even 
revised,  but  must  forever  remain  unaltered  and  unalterable. 
If  this  be  so,  it  matters  not  what  the  progress  of  historical 
research  and  scientific  investigation;  it  matters  not  what  the 
advance  of  the  intellectual  and  religious  world,  the  creed,  made 
seventy  years  ago,  must  remain  the  immutable  truth;  and 
whatever  the  2,500  preachers  and  200,000  members  of  the 
Church  now  believe,  and  now  desire  and  want,  they  must 
remain  forever  bound  hand  and  foot  by  a  cast  iron  rule,  made 
by  the  twenty-three  preachers  who  constituted  the  Conference 
of  1841. 

Will  any  court  sustain  a  construction  so  utterly  at  variance 
with  reason,  common  sense,  and  public  policy? 


21 

Said  Justice  McLean,  in  Bloomer  vs.  Stolley,  5  McLean, 
158:  "There  is  no  mode  by  wliicli  a  legislative  act  can  be  made 
irrepealable,  except  it  assume  the  form  and  substance  of  a 
contract." 

And  Judge  Cooley:  "Similar  reasons  to  those  which  for- 
bid the  legislative  department  of  the  state  from  delegating  its 
authority  will  also  forbid  its  passing  any  irrepealable  law." 

Cooley.  Cons.  Lim.,  149. 

See  authorities  before  cited  on  power  of  one  legislature  to  bind 
a  subsequent  one,  as  also  upon  the  power  of  courts  to  construe 
doubtful  provisions,  so  as  to  prevent  absurdity,  injustice,  etc. 

Blackstone  says:  "Acts  of  parliament  that  are  impossible  to 
be  performed  are  of  no  validity ;  and  if  there  arise  out  of  them, 
collaterally,  any  absurd  consequences,  manifestly  contradictory 
to  common  reason,  they  are,  with  regard  to  those  collateral 
consec^uences,  void." 

Black.  Com..  Vol.  I.  p.  91. 

The    supreme    court   of   Michigan,   in    two   cases,   declared 

ordinances  of   certain    cities   in   that    State   "invalid,   because 

unreasonable." 

People  vs.  Armstrong,  ll  N.  W.  Rep..  275. 
Frazer's  case,  G.3  Mich.,  .396. 

So  the  supreme  court  of  Illinois  declared  certain  ordinances 
of  cities  in  that  State  void,  "because  unreasonable  and  oppres- 
sive." 

Clinton  vs.  Phillips.  58  111.,  102. 

Other  States  have  held  the  same  way. 

Commissioners  vs.  Gas  Co.^  12  Pa.  St..  318. 
Kip  vs.  Patterson,  26  N.  J.  Law,  298. 
Commissioners  vs.  Robertson,  5  Cush.,  1.38. 
Dunham  vs.  Rochester,  5  Con.,  462. 
Dillon  vs.  Mun.  Corp.,  i?  253. 

State  vs.  Sinks,  42  O.  S.,  345-6,  as  to  effect  of  State  legislation 
"plainly  unreasonable  and  improbable.'' 

But  the  jDrovision  is  susceptible  of  a 

MORE  REASONABLE  CONSTRUCTION, 

The  one  that  the  subsequent  conferences  placed  upon  it,  to-wit: 
that  no  radical  change,aio  wholesale  alteration  be  made;  noth- 


22 

ing  done  that  would  "do  away"  with  the  entire  confession.  An 
examination  of  tlie  proceedings  of  the  several  conferences  held 
since  1815  shows  that  at  every  one  of  them  changes  in  the  con- 
fession of  faith  and  discipline,  more  or  less  material,  have  been 
made;  many  of  them  at  the  instance,  or  by  the  vote,  of  some  of 
those  who  now  so  londly  proclaim  themselves  the  only  "defenders 
of  the  old  faith."  Some  of  them  were  made  directly,  by  striking- 
out  some  words  and  inserting  others,  as,  for  example,  in  the 
paragraph  on  baptism,  in  what  the  seceders  claim  to  be  the 
"old  confession  of  faith  of  1815,"  lltcrt'  ircrc  ten  clKdH/cs  in  ihc 
jilirdxcohxjii  iikkIc  hcfirccii  JSJ')  mid  JS41.  Others  were  made 
indirectly,  l)y  changing  or  adding  to  the  discipline,  in  the  pre- 
scribed examination  of  candidates  for  admission  to  the  Church 
and  ministry.  Amcmg  these  were  those  made  in  conferences 
of  1858  and  1857,  ui)oii  the  question  of  dei)ravity,  defining 
what  is  "natural  depravity,"  and  what  "total  depravity." 
Others  were  made  by  declaring  what  text-books  must  be  used 
in  the  coiu'se  of  study  in  the  Theological  Seminary.  Others 
especially  relating  to  (-(induct,  were  adopted  as  resolutions, 
as,  for  example,  those  relating  to  Sunday  ol^servance,  slavery, 
intemperance,  secret  societies,  dress,  women's  rights,  smoking, 
etc.  In  course  of  time,  by  these  methods,  the  doctrines  of  the 
Church  became  scattered  over  the  whole  discipline.  The  re- 
vised confession,  about  which  such  a  clamor  is  raised,  siiiiphj 
hrotii/ld  llieiii  /o(/efliei\  and  j>nt  llieiii  in  jtrojier  sIki/x'. 

Judge  Lawrence,  in  his  "Professional  Opinion,"  page  6,  ad- 
mits that  a  "few  changes"  to  the  confession  were  made  between 
1815  and  1883,  but  that  they  were  "immaterial,"  and  that  those 
made  after  1888  related  not  "to  belief  but  to  discipline,"  and 
one  of  them  merely  to  correct  a  typograi)hical  error.  It  is 
enough  to  know  that  what  he  says  was  to  remain  "forever 
uiiclwinged,"  ir<is  clKtiiijed,  and  fi-eijnenll if.  AVhether  these 
ciianges  were  material  or  not,  or  whether  they  reflated  tt)  be- 
lief or  conduct,  or  were  the  result  of  tyi)ograpliical  or  other 
mistake,  is  of  no  importance  whatever.  In  either  case  it 
demonstrates,  most  clearly,  tli;d  tlie  Clnii-ch  construed  tlie  |)ro- 
vision  reasonal)ly,  and  revised  the  confession,  from  tinu^  to 
time,  as  seemed  necessary    and   proper      And  that  the   final 


28 

-revision,  made  in  1885-9,  was  really  desired  and  fully  •sanc- 
tioned by  the  Glmrch  is  conchisively  shown  by  the  result  of 
the  vote  upon  the  confession,  submitted  as  it  was  upon  a  separate 
ballot,  and  so  freed  from  any  question  as  to  the  adoption  of 
the  constitution  or  the  anti-secrecy  provision,  to-wit:  Yeas, 
51,070;  nays,  3,810;  majority  in  favor  of  its  adoption,  47,760. 


Conference  Bction  cbanoiniji  tbe  Constitntion. 

An  examination  of  the  proceedings  of  the  ten  General  Con- 
ferences between  1841  and  1885  will  show  not  only  that  the 
validity  of  the  constitution  of  1841  was  persistently  questioned, 
but  that  the  constitution  itself  was  changed;  that  is,  its  mean- 
ing was  enlarged,  restricted,  or  modified,  from  time  to  time, 
by  successive  conferences,  as  the  progress  of  the  Church  and 
the  times  seemed  to  require. 

The  question  of  a  direct,  verbal  change  of  Article  I.,  so  as  to 
permit  lay  representation,  was  considered,  reported,  and  voted 
upon  in  Conferences  of  1857  and  1869,  and  actually  carried  in 
1873.  A  few  petitions  asking  the  change  were  presented,  but 
it  was  admitted  that  the  "recpiest"  came  fro}H  oiilij  one  sixfij- 
s(u-('iifli  of  f/ic  irholc  socicfi/.  The  Conference,  after  several 
days'  discussion,  adopted  the  amendment  by  a  vote  of  ninety  in 
favor  of,  and  only  twelve  against  it.  It  was  made  subject  to  the 
approval  of  the  Church,  and  the  mode  of  submission  was  care- 
fully provided.  It  was  substantially  the  same  as  that  adopted 
by  Conference  of  1885. 

Conference  proceedings  for  187,3,  p]).  105,  168. 

There  having  been  difference  of  opinion  shown  in  the  dis- 
cussion as  to  the  meaning  of  Article  IV.,  the  following  resolution 
was  adopted  by  the  Conference:  "Ecsolrcd,  That  the  explicit 
rendering  of  Article  IV.  of  the  constitution  be  submitted  to  the 
Board  of  Bishops,  and  that  they  be  instructed  to  publish  the 
same  in  the  Rclif/ioiis  TeJc^^copc.'' 

Conference  proceedings  1873,  p.  205. 


24 

So  far  as  appears  from  the  records,  the  bishops  rendered 
and  pnl)lished  no  opinion,  and  the  amendment  was  never  voted 
upon  or  even  submitted  to  the  Chnrch. 

But  the  action  of  this  Conference,  held  sixteen  years  ago, 
settled  two  things: 

Firsf.  That  the  General  Conference  conceded  the  necessity 
and  assumed  the  right  of  giving  a  reasonable  construction  to 
Article  lY.  of  the  constitution. 

SccuikI.  That  properly  construed,  Article  IV.  did  not  re- 
quire an  (iiifcccdciil  two-thirds  recpiest,  by  way  of  i)etition  or 
otherwise,  of  the  whole  society  to  validate  an  amendment. 

In  Watson  vs.  Jones,  13  Wallace,  733,  the  court  specifies 
the  cases  in  which  the  decision  of  the  ecclesiastical  court  must 
be  regarded  as  final  and  conclusive,  and  among  them  is  "///c 
rif/lif  of  coiistnihu/  their  oirit  Inirs.'" 

But  if  any  doubt  remained  as  to  these  i3oints,  they  were  re- 
moved by  the  action  of  the  Conferences  of  1885  and  1889,  and 
the  construction  of  said  article  so  given  is  final  and  conclusive. 
This  brings  us  to  the 

lProccc^iuo6  of  the  Conferences  of  18S5  anb 

1889, 

And  again  to  the  question.  What  is  the  reasonable  and  proper 
construction  of  Article  IV  of  the  constitution?  Manifestly,  that 
put  upon  it  by  the  General  Conference,  to-wit:  that  no  alter- 
ation of  the  constitution  shall  bt^  made  without  the  consent  or 
a})proval  of  two  thirds  of  the  whole  society.  As  the  General 
Conference  meets  but  once  in  four  years,  it  adopted  the  best 
possible  mode  to  enable  the  Churcli  to  pass  iipon  the  question 
of  the  i^roposed  amendments.  It  ai)pointed  a  commission  ( which 
was  only  another  name  for  a  c(mimittee  ),  which,  after  maturing 
its  amendments,  submitted  them  fairly  to  the  ])eople,  who  voted 
upon  them,  and  the  result  was  reported  to  the  C\)nfei'eiice  of 
1881)  as  follows:  For  the  amended  constitution,  ;")(), (iSf);  against 
it,  3,()59;  majoi-ity  for  the  amended  constitution,  •J:7,()'2().  Every 
effort  seems  to  have  been  made  to  secure  a  full  and  fair  vote. 


25 

-No  one  charged  that  there  was  not  a  "fair  vote  and  an  honest 
count."  More  than  two  thirds  of  all  who  voted,  voted  for  the 
amended  constitution  and  confession  of  faith.  This  was  fJw 
"reqaesV  and  the  "■request  of  firo  thirds  of  the  ivhole  society.''' 
The  Conference  finding  it  thus  fullij  authorized,  adopted  tJie 
aiyiended  constitution  and  rerised  coufession  of  faith,  and  after 
j)rocla}ii(di()u  hij  tlic  hisliops,  thc/j  i)ecatiic  aud  irere  the  law  of 
the  C/iu)rli. 

But  it  is  said  that  many  did  not  vote,  and  therefore  it  was 
not  the  vote  of  two  thirds  of  the  whole  society.  It  has  been 
decided  that  the  whole  number  of  votes  cast  at  an  election  at 
which  an  amendment  to  a  State  constitution  is  submitted  will 
be  taken  as  the  number  of  electors  of  the  State,  and  that  where 
an  act  required  a  "majority  of  the  legal  voters"  of  a  township 
or  county,  it  "intended  to  require  only  a  majority  of  the  legal 
voters  of  the  township  or  county  voting  at  the  election."  The 
question  is  well  settled  by  numerous  decisions  in  the  federal 
and  State  courts,  and  the  Conference  was  undoubtedly  right  in 
holding  that  after  submitting  the  amendments  to  a  vote  of  the 
Church,  two  tliirds  of  those  ivlio  rated  was  two  tliirds  of  tlie 
"  trhole  societij.'" 

St.  Joseph  vs.  Rogers,  IG  Wallace,  663-4,  and  authorities  there 

cited. 
Wardens  of  Christ  Ch.  vs.  Pope,  8  Gray,  140-3. 
Richardson  vs.  Society,  58  N.  H.,  188-9. 
State  vs.  Swift,  69  Ind.,  505. 
Green  vs.  Weller,  32  Miss.,  850. 
Prob.  Anit  cases,  24  Kans.,  700. 
Dayton  vs.  St.  Paul,  22  Minn.,  400. 
Miller  vs.  English,  21  N.  J.,  317. 
Mad.  Av.  Ch.  vs.  Bap.  Ch.,  2  Abb.  Pr.  (N.  S.),  2.34. 
95  U.  S.,  369. 
1  Sneed  (Tenn.),  690. 
20  111.,  159. 
20  Am.  Corp.  cases,  93. 

Said  Judge  Mcllvaine  in  Harrison  vs.  Hoyle,  21  Ohio  State, 
269:  "All  members  of  the  society  are  included,  because  if  not 
present,  participating  in  the  action  of  the  meeting,  their  absence 
was  voluntary,  and  hence  there  is  no  ground  for  complaint." 


26 


action  of  General  Conference,  ifinal  anb 
Conclueive. 

But  we  think  the  history  and  facts  already  detailed  make 
it  clear  that  the  General  Conference  of  the  United  Brethren 
Church,  like  the  "General  Assembly  of  the  Presbyterian 
Church,"  is,  to  use  the  language  of  Chief- Justice  Gibson,  "a 
homogeneous  body,  uniting  in  itself,  without  separation  of 
parts,  the  legislative,  executive,  and  judicial  functions  of  the 
government,  and  its  acts  are  referable  to  one  or  the  other  of 
them,  according  to  the  capacity  in  which  it  sat  when  they 
were  performed." 

Commonwealth  vs.  Green.  4  Wheat,  531. 

And  the  General  Conference,  as  we  have  seen,  has  not  only 
considered  and  judicially  determined  all  the  questions  herein- 
before discussed,  but  in  its  legislative  capacity  has  apjjroved 
and  sanctioned  the  work  of  its  commission  and  adopted  the 
constitution  and  confession,  and  as  the  chief  executive  power 
of  the  Church  declared  them  to  be  the  supreme  law  and  the 
approved  doctrine  of  the  Church,  and  so  far  as  has  been  neces- 
sary, enforced  obedience  thereto. 

Is  not  this  final  and  conclusive? 

In  the  celebrated  case  of  Watson  vs.  Jones,  irliich  lias  hccii 
followed  111  (I  I  most  crcr//  Sfofc,  Justice  Miller  said: 

"In  this  class  of  cases  we  think  the  rule  of  action  which  should  govern 
the  civil  courts,  founded  in  a  broad  and  sound  view  of  the  relations  of 
church  and  state  under  our  system  of  laws,  and  supported  by  a  preponder- 
ating? weight  of  judicial  authority,  is  that  whenever  the  questions  of  disci- 
pline, or  of  faith,  or  eccrlesiastical  rule,  custom,  or  law  have  been  decided 
by  the  hif,'hest  of  these  churcrh-judicatories  to  which  the  matter  has  been 
carried,  the  lej^al  tribunals  must  accept  such  decisions  as  final,  and  as 
binding  on  them  in  tlicir  a|)plication  t()  the  case  before  them. 

"The  right  to  organize  voluntary  religious  associations  to  assist  in  the 
expression  and  dissemination  of  any  religious  doctrine,  and  to  create  tribu- 
nals for  the  decision  of  (lontroverted  questions  of  faith  within  the  associa- 
tion, and  for  the  ecclesiastical  government  of  all  the  individual  members, 
congregations,  and  ollicers  within  the  general  association,  is  uncjuestioned. 
All  who  unite  Uwm.'ielrcs  to  mic/i  ii  hixli/  do  ko  iritli  on  implied  eoiiseiit  to 
this  govern ment,  and  are  bound  to  siil>iiiit  to  il.     But  it  would  be  a  vain 


27 

consent  and  would  lead  to  the  total  subversion  of  such  religious  bodies  if 
any  one  aggrieved  by  one  of  their  decisions  could  appeal  to  the  secular 
courts  and  have  them  reversed." 

We  ask  the  special  attention  of  the  court  to  this  case,  as  also 
to  the  following  authorities  upon  the  same  qiiestions: 

Watson  vs.  Jones,  13  Wallace,  679,  733. 

Harrison  vs.  Hoyle,  21  Ohio  State,  294. 

GaiT  vs.  Greet,  88  Ind.,  122. 

Potter  on  Corporations,  vol.  2,  709,  etc.,  719,  720. 

Walker  vs.  Wainwright,  16  Barb.,  486. 

State  vs.  Farris,  45  Mo.,  183. 

Robertson  vs.  Bullions,  9  Barb.,  64. 

German  Ch.  vs.  Seibert,  3  Pa.  St.,  282. 

Shannon  vs.  Frost,  3  B.  Mon.,  253. 

Gibson  vs.  Armstrong,  7  B.  Mon.,  481. 

Hale  vs.  Everett,  53  N.  H.,  2. 

Terraria  vs.  Vasconce.,  23  111.,  403. 

Harmon  vs.  Dreher,  1  Speer  Equity,  87. 

German  Ref.  Ch.  vs.  Seibert,  3  Barr.,  282. 

McGinnis  vs.  Watson,  41  Pa.  St.,  1. 

Chase  vs.  Cheney,  58  111.,  509. 

"  The  civil  courts  act  upon  the  theory  that  the  ecclesiastical  courts  are 
the  best  judges  of  merely  ecclesiastical  questions  and  of  all  matters  which 
concern  the  doctrines  and  discipline  of  the  respective  denominations  to 
which  they  belong. 

"  Where  a  schism  occurs  in  an  ecclesiastical  organization,  which  leads 
to  a  separation  into  distinct  and  confiicting  bodies,  the  respective  claims  of 
such  bodies  to  the  control  of  the  property  belonging  to  the  organization 
must  be  determined  by  the  ecclesiastical  laws,  usages,  customs,  principles, 
and  practices  which  were  accejjted  and  adopted  by  the  organization  before 
the  division  took  place." 

The  White  Lick  Quaker  case,  89  Indiana,  1.36. 

"  The  ijrinciple  may  now  be  regarded  as  too  well  established  to  admit  of 
controversy,  that  in  case  of  a  religious  congregation  or  ecclesiastical  body, 
which  is  in  itself  but  a  subordinate  member  of  some  general  church  organ- 
ization, having  a  supreme  ecclesiastical  judicatory  over  the  entire  member- 
ship of  the  organization,  the  civil  tribunals  must  accept  the  decisions  of 
such  judicatory  as  final  and  conclusive  upon  all  questions  of  faith,  disci- 
pline, and  ecclesiastical  rule." 

High  on  Injunctions,  vol.  1,  sec.  310;  314. 

In  the  recent  case  of  Maiini.r  vs.  PkitHI,  cf  a],  in  our  own 
supreme  court,  Chief- Justice  Owen  says:  "The  contention  is 
that  to  resort  to  the  law  of  the  cliurch  as  proof  upon  which  to 


28 

qualify  the  absolute  terms  of  the  grant,  is  to  permit  the  law  of 
the  church  to  sujjersede  or  dominate  the  civil  law,  and  much 
sensitiveness  is  shown  by  eminent  counsel  upon  this  subject. 
There  is  here  no  ground  for  alarm.  It  is  no  innovation  on  the 
law  of  evidence  in  determining  questions  like  the  one  at  bar,  to 
call  in  aid  of  the  civil  tribunal  upon  the  law  of  the  particular 
church  involved  for  the  purpose  of  determining  the  title  to 
church  property.     *     *     * 

"It  is  but  a  form  of  establishing,  by  convenient  and  very 
convincing  proof,  what  entered  into  the  contemplation  of  the 
parties  to  the  grant  at  the  time  the  title  vested.  It  has  been 
held  that  where  a  religious  body  becomes  divided,  and  the 
right  to  the  property  is  in  conflict,  the  civil  courts  will  con- 
sider and  determine  which  of  the  divisions  submits  to  the 
church,  local  and  general.  This  division  is  entitled  to  the 
property.  In  determining  which  of  the  divisions  has  main- 
tained the  correct  doctrine,  ihc  Jiii(liii</s  of  flic  siipiTDic  cc- 
cl('si(islic((l  fnhiiiKil  of  Hie  (Iciioiiiiiialioii  in  (jiicsfioii  is  hindiiuj 
iij)oii  ihc  ciril  coinis.''  The  chief-justice  cited  McGinnis  vs. 
Watson,  41  Pa.  St.,  9;  Ramsey's  Appeal,  88  Pa.  St.,  60;  First 
Pres.  Society  vs.  Langley,  trustee,  25  Ohio  St.,  128;  Ferraria 
vs.  Vasconcellos,  83  111.,  25;  3  Am.  &  Eng.  Ency.  of  Law,  135. 
Law  Bulletin,  vol.  21,  p.  76. 

It  is  upon  this  question  that  Judge  Lawrence  quotes  so  re- 
jK'oirdlij  from  Chief- Justice  Fuller  as  if  from  an  opinion  ren- 
dered hi/  liiiii  ill  the  L'niied  Shdes  Supreme  Coiiri,  when  as  a 
matter  of  fact  //  is  from  on  orfiele  irriffen  h/j  liim  irlien  mereli/ 
(I  pr(ie1icin<i  loirijer  and  serenfeen  i/eors  before  he  iros  (tpj)oiided 
cliiff-jiisfire.  He  had  just  been  beaten  in  the  case  of  Chase  vs. 
Cheney  in  the  supreme  court  of  Illinois.  Sore  from  the  defeat, 
he  wrote  an  article  for  the  Amerieon  Loir  /Avy/.s/ry  criticising 
the  decision  of  the  court. 

But  his  <)l)jecti<)n  to  the  decision  even  then  went  mostly  to 
the  ([uestion,  wlietlier  a  court  might  inquire  into  the  jurisdic- 
tion and  good  faith  of  the  ecclesiastical  tri})unal;  |)oiiits  that  do 
not  arise  in  this  case,  for  irho  irill  ipieslion  the  foci  llud  f/ie  (1  en- 
end  Conference  liod  Jii risdiclion  and  oclcd  in  ijood  foil/i  in  ren- 
der iiKj  ils  derision/ 


29 

1ba6  ^bere  IBccn  a  departure  from  tbc  ®lt) 
jfaitb,  'msaoes,  Etc.? 

We  think  not.  We  think  the  Court  will  find  that  in  all 
this  revision  there  has  been  no  abandonment  of  the  old  faith, 
usages,  customs,  etc.,  of  the  Church.  This  was  carefully- 
guarded  by  the  Conference  of  1885,  in  creating  the  Commis- 
sion and  defining  its  powers.  The  preamble  indicates  the 
reason  for  revising  the  confession  of  faith,  to-wit :  "Whereas, 
our  confession  of  faith  is  silent  or  ambiguous  upon  some  of 
the  cardinal  doctrines  of  the  Bible  as  held  and  believed  by  our 
Church."  Note  that  it  is  not  because  the  Conference  wants 
to  abrogate,  change,  or  abandon  any  of  the  old  doctrines,  but 
simply  to  put,  verbally,  into  the  confession  of  faith,  not  new  and 
strange  doctrines,  but  the  old  ones,  long  held  and  believed  bij 
the  Chur'ch,  but  by  mistake  or  oversight  omitted  therefrom. 
This  is  made  clear  and  emphatic,  by  the  conditions  named  in 
the  act  itself.  The  Commission  is  to  "consider  our  present 
confession  of  faith,"  etc.:  "Provided,  first,  that  this  Commis- 
sion shall  preserve  unchamjed  in  substance  the  present  con- 
fession of  faith  so  far  as  it  is  clear;  second,  th(d  it  shall  also 
retain  the  present  itinera nl  plan;  third,  that  //  shcdl  keep 
sacred  the  general  usages  and  distinctive  principles  of  the 
Church,''  etc. 

And  that  the  Commission  obeyed  these  instructions  and 
kept  strictly  within  the  bounds  so  prescribed,  is  shown  by  the 
report  of  the  committee  to  whom  the  matter  was  referred  in 
the  Conference  of  1889,  and  the  action  of  the  Conference 
thereon. 

The  committee  reported  that  after  careful  examination  of 
the  work  of  the  Commission,  and  comparison  of  the  instruc- 
tions and  limitcdions  made  by  the  Conference  of  1885,  with 
the  work  of  the  Commission,  it  found  thcd  said  instructions 
and  limited  ions  had  been  "obeijcd  and  carried  out  ivith  com- 
mendable accuracy,'''  and  further,  "that  the  proceedings  and 
acts  of  the  Commission  had  been  found  to  be  regular,  and  in 
accord  loith  the  directions  given  by  the  highest  authority  Ixnown 
to  our  Church,"  and  therefore  ivorthy  of  adoption.  The  Con- 
3 


ao 

ference,  after  fair  and  full  discussion  and  careful  deliberation, 
adopfcil  fills  report,  and  finding  that  the  revised  confession 
of  faith  and  amended  constitution  had  heen. "requ.este(r'  by- 
more  than  two-thirds  of  the  members  who  voted  at  the 
election  held  for  that  purpose,  rafifed  and  confirmed  fhem, 
and  rij/ldl/i  deeldved  ilieni  fo  be  the  " fandamenful  belief  and 
organic  lair  of  llie  Clinrcli.'''' 

Can  there  be  any  question  as  to  the  force  and  validity  of 
this  action? 

Must  not  this  decision  of  the  highest  legislative  and  judi- 
cial i)ower  in  the  Church  be  final  and  conclusive? 

To  what  purpose,  then,  the  long  and  labored  arguments 
of  Counsel  for  defendants,  touching  the  regularity  of  the  pro- 
ceedings of  the  Commission,  and  the  regularity  of  the  action 
of  the  Conference  and  the  procedure  of  the  bishops  thereon? 
AVere  not  all  these  things  passed  upon,  properly  and  finally, 
by  the  General  Conference,  and  is  not  its  decision  upon  these 
points,  if  no  other,  Jinal  and  conclusive  9 

In  deciding  similar  questions  raised  as  to  the  validity  of 
certain  proceedings  in  a  convention  called  to  form  a  new  Con- 
stitution in  Pennsylvania,  the  Supreme  Court  of  that  State 
said : 

"Whether  one-third  of  the  members  of  the  convention  requested  a 
separate  submission  of  an  amendment,  and  whether  the  request  was  in  an 
orderly  way,  was  for  the  convention  to  decide,  and  could  not  after  their 
action  be  inquired  into.  Error  of  procedure  in  the  convention  cannot  be 
inquired  into,  the  convention  having  acted  within  the  scoi^e  of  its  powers." 

Wells  vs.  Bain,  75  Pa.  St.,  40. 


Mill  the  Court  (3o  Bcbin^  tbe  S)cci5ion  of  tbe 
(Bencral  Conference  ? 

But  notwithstanding  the  undisputed  fact  that  the  M'ork  of 
the  Commission  w^as  approved  by  the  Church,  and  the  revised 
confession  adoi)ted  by  the  General  Conference  and  ratified  by 
the  people,  Counsel  for  the  seceders  insist  that  the  Court  shall 
go  behind  all  these  decisions  of  the  highest  judicatory  of  the 
Church  and  disregard  the  expressed  will  of  the  people,  and  con- 


31 

sider  dc  iioro,  the  question,  whether  the  Commission  did  or  did 
not  "preserve  unchanged,  in  substance,  the  confession  of  faith 
so  far  as  it  is  clear,"  and  whether  it  did  or  did  not  make  essen- 
tial and  material  variations  therein,  and  so  follow  Counsel  and 
their  expert  witnesses  into  a  fruitless  investigation  of  the 
"  thousand  and  one  creeds  of  Christendom,"  and  an  endless  dis- 
cussion of  dogmatic  theology,  ending  in  the  illimitable  field  of 
sectarian  controversy.  Has  the  Court  the  leisure  or  inclination 
to  engage  in  this  ecclesiastical  hair-splitting?  Will  it  under- 
take to  decide,  for  instance,  wdiether  the  alleged  change,  "resur- 
rection from  the  dead," — the  very  phrase  used,  it  is  admitted,  by 
Christ  and  his  apostles,  and  found  in  the  Nicene,  and  most  of 
the  creeds  of  Christendom, — from  "resurrection  of  the  body," 
which  it  is  admitted  was  never  used  by  Christ  or  his  apostles, 
was,  or  was  not  a  justifiable,  if  a  substantial  change?  Will  the 
Court  attempt  to  define  sanctification,  and  determine  what  is  its 
equivalent  expression;  and  whether  it  was  a  departure  from  the 
old  faith  to  use  the  very  word  introduced  by  Otterbein,  and  in- 
sert a  doctrine  universally  believed  by  the  Church  and  made 
essential  to  admission  to  its  ministry?  And  the  "communion  of 
the  saints" — it  is  not  in  the  Scriptures — was  not  in  the  Apostles' 
Creed  originally,  but  crept  in,  nobody  knows  when  or  how,  was 
not  in  the  so-called  Otterbein  creed,  and  was  never  used  by 
Boehm,  Goeting  and  the  founders  'of  the  Church — was  its 
rejection,  whatever  it  may,  or  may  not  mean,  a  departure  from, 
or  a  return  to,  the  old  faith?  Add  to  these  the  divers 
metaphysical  questions  involved  in  the  doctrines  of  depravity, 
justification,  regeneration,  adoption,  future  i^unishment,  et 
cetera:  questions  which  have  been  the  subject  of  heated,  j^rofit- 
less  discussion  for  eighteen  centuries,  and  which  probably  will 
continiie  to  be  in  the  same  fruitless  controversy  for  eighteen 
centuries  to  come — is  the  Court  sufficient  for  this  Herculean 
task?  Will  it  not  rather  say,  as  did  the  Supreme  Court  of  Penn- 
sylvania, in  a  similar  case:  "The  decisions  of  ecclesiastical 
courts,  like  every  other  judicial  tribunal,  are  final;  as  they  are 
the  best  judges  of  what  constitute  an  off^ense  against  the  word 
of  God  and  the  discipline  of  the  Church.  Any  other  than 
those  courts  must  be  incompetent  judges  of  matters  of  faith. 


32 

discipliue,  and  doctrine ;  and  civil  courts,  if  they  should  be  so 
unwise  as  to  attempt  to  supervise  their  judgments  on  matters 
which  come  within  their  jurisdiction,  would  only  involve  them- 
selves in  a  sea  of  uncertainty  and  doubt,  which  would  do  any- 
thing but  improve  either  religion  or  good  morals." 
German  Ref.  Ch.  vs.  Seibert,  3  Pa.  St.,  282. 

And  says  Justice  Miller  in  Watson  vs.  Jones: 

"  It  is  not  to  be  supposed  that  the  judges  of  the  civil  courts  can  be  as 
competent  in  the  ecclesiastical  law  and  religious  faith  of  all  these  bodies 
( Episcopal,  Presbyterian,  Methodist,  etc., )  as  the  ablest  men  in  each  are 
in  reference  to  their  own.  It  would,  therefore,  be  an  appeal  from  the  more 
learned  tribunal  in  the  law  which  should  decide  the  case,  to  one  which  is 
less  so." 

It  must  be  kept  in  mind  that  this  is  iiof  a  case  where  the 
property,  which  is  the  subject  of  the  controversy,  is  held  by 
deed  or  will  of  the  donor,  and  by  tJie  express  terms  of  the 
mstrument  devoted  to  tlie  teacliing,  support,  or  sj^read  of  some 
specific  form  of  religious  doctrine  or  belief  In  such  a  case, 
we  readily  grant,  it  would  be  the  duty  of  the  Court,  however 
delicate  or  difficult  it  might  be,  to  determine  whether  the  party 
accused  of  violating  the  trust,  is  holding  or  teaching  a  doctrine 
so  different  as  to  defeat  the  declared  object  of  the  trust. 

Many  of  the  cases  cited  by  Counsel  for  the  seceders,  and 
from  which  they  quote  so  frequently,  are  cases  of  this  char- 
acter, or  cases  where  the  property  is  held  by  a  religious 
society  irliicli  /.s  slriclli/  iiidcju'iidciit  of  oilier  ecclesiastical 
associcdions,  and  .so  far  as  doctrine  or  (/oreriniiod  is  concerned, 
oires  no  fe(dti)  or  obli(j(dion  to  anij  ot/ier  autlioritij. 

The  distinction  between  these  and  churches,  like  the  United 
Brethren  in  Christ,  which  are  subordinate  members  of  some 
general  church  organization  in  which  there  are  superior  eccle- 
siastical tribunals  with  a  general  and  ultimate  control  in  some 
supreme  judicatory  over  the  whole  membership,  is  clearly 
shown  in  Watson  vs.  Jones,  18  Wallace,  729,  where  the  Supreme 
Court  holds  that: 

"In  this  class  of  cases  we  think  the  rule  of  action  which  should  govern 
the  civil  courts,  founded  in  a  broad  and  sound  view  of  the  relations  of 
Church  and  State  under  our  system  of  laws,  and  supported  by  a  prepon- 
derating weight  of  judicial  autliority,  is  that  whenever  the  questions  of 


33 

discipline,  or  of  faith,  or  ecclesiastical  rule,  custom,  or  law  have  been 
decided  by  the  highest  of  these  church-judicatories  to  which  the  matter 
has  been  carried,  the  legal  tribunals  must  accept  such  decisions  as  final 
and  as  binding  on  them  in  their  application  to  the  case  before  them." 

But  should  the  Court,  notwithstanding  all  this,  be  disposed 
to  go  behind  the  decision  of  the  General  Conference  and  look 
into  the  question  of  creeds,  it  would  find  that  what  is  called  the 
new  confession  is  not  ncm  (if  all,  but  cnibrctccs  ihe  ivhole  oj 
flic  so-called  Offerbclii  creed  in  almost  its  exact  langjtage,  and 
tJie  substance  of  cdl  tlud  is  coidained  in  the  Confession  of  1815, 
— expressed,  some  of  it,  in  the  identical  words,  the  rest  of  it 
in  clearer  and  better  language — adding,  simphj,  certain  doc- 
trines precious  to  all  Cliristicois,  and  wJiicJt  had  cdways  been  be- 
lieved in  the  ChurcJt,  and  had  been  at  different  times,  and  in 
different  ways,  authorized  and  placed  in  the  Discipline,  but  not 
included  formally,  as  they  manifestly  should  be,  in  the  creed  of 
the  Church.  Dr.  Davis  and  the  other  controversialists,  who 
testify  as  experts,  object  to  some  passages  in  this  confession, 
but  their  evidence,  closely  scrutinized,  shows  that  their  criticism 
is  verbal,  not  substantial;  while  the  witnesses  called  on  the 
other  side,  including  Bishop  Weaver,  Professors  Drury,  Funk- 
liouser,  etc.,  the  ripest  scholars  and  ablest  divines  in  the  Church, 
declare  in  the  most  unequivocal  terms,  that  there  is  no  depart- 
ure from  the  old  faith;  nothing  really  new  to  the  Church;  no 
substantial  difference  between  it  and  the  old  confession,  and  the 
doctrines  before  that  time,  declared  by  the  Church. 

Such  precisely  was  the  verdict  of  the  General  Conference — 
the  highest  judicatory  in  the  Church — and  such  the  voice  of 
the  membership  as  expressed  at  the  polls,  and  which,  even  if 
not  binding,  should  have  great  weight  in  the  determination  of 
the  question. 

Do  Creeps  ]£ver  Cbanoe? 

But  Counsel  for  the  speeders  gravely  tell  us  that  "creeds 
never  change."  The  Apostles'  Creed,  as  now  received,  shows 
ten  changes  since  341.  To  avoid  a  similar  fate  for  the  Nicene 
Creed,  the  (Eciimenical  Council  declared  it  should  "remain 
forever,"  but  a  comparison  between  the  creed  of  325  with  that 


34 

of  381  shows  thirteen  changes,  and  another  important  one  was 
made  in  589  by  adding  the  "filioquc.''  The  Athanasian  Creed 
was  merely  an  expansion  of  the  two  former  creeds;  but  the 
additions  are  shown  by  the  fact  that  it  is  six  times  as  large 
as  the  Apostles'  Creed.  Although  changed,  these  creeds  have 
not  ceased  to  be  reverently  used  by  the  Church. 

Schaff 's  Creeds  of  Christendom,  vol.  1,  pp.  21-28-9. 
Krauth's  Reformation  Theology,  pp.  271  5. 
McClintock  and  Strong,  vol.  2,  262. 

And  change  has  in  the  same  way  marked  the  history  of  the 
modern  church.  The  Church  of  Scotland  established  its  cove- 
nants in  1557,  changed  them  in  1559,  again  in  1638,  again  in  1843, 
and  still  again  within  a  later  period.  The  Augsburg  Confession 
has  had  frequent  additions  made  to  it  in  each  country  where 
the  Lutheran  Church  has  been  established.  The  Westminster 
Confession  has  been  changed  and  must  be  changed  again,  and 
radically,  too,  or  it  will  divide  the  Presbyterian  Church.  Newer 
churches,  like  the  Methodist,  Baptist,  and  Congregational, 
have  gained  adherence  and  popularity  by  a  departure  from 
the  old  creeds,  and  the  adoption  of  new  creeds  and  new 
methods,  or  by  leaving  the  questions  to  their  individual 
churches.  Of  all  denominations,  the  Church  of  Rome  is  least 
given  to  change,  and  yet  it  has  added  two  important  dogmas 
within  the  memory  of  living  men,  to-wit:  the  Infallibility  of 
the  Pope  and  the  Immaculate  Conception. 

And  yet  not  one  of  these  Churches  has  lost  its  identity  Oi 
l^roperty. 

The  same  advance  in  biblical  learning  and  research  has 
led  to  the  revision  of  the  authorized  versions  of  the  Old  and 
New  Testaments. 

The  eminent  historian  and  scholai".  Dr.  Philip  Scliatf,  says: 
"There  is  a  development  in  the  history  of  symbols.  They 
assume  a  more  definite  shape  with  the  progress  of  biblical  and 
theological  science.  They  are  mile-stones  and  finger-boards 
in  the  history  of  Christian  doctrine."  Canon  Farrar  ex- 
pressed the  same  thought:  "The  history  of  religions  all 
through  the  ages  has  shown  that  ci  creed  is  simplij  a  re(/isier 
of  the  results  of  research  up  to  a  certain  truth.'''' 


35 

Says  the  learned  Presbyterian  divine,  Dr.  Morris: 

"  It  should  be  held  constantly  in  view  that  the  church  which  frames  a 
creed  has  a  right  at  any  moment  to  revise  it  wherever  it  is  defective — to 
modify,  expand,  abbreviate,  change  the  document  itself,  and  also  to  regu- 
late at  all  times  the  use  or  abuse  of  it  by  ecclesiastical  authorities.  Such 
a  prerogative  is  certainly  to  be  exercised  with  great  caution,  but  the  right 
to  exercise  it,  like  the  right  to  interpret  the  scripture,  is  cardinal  in 
Protestantism,  and  is  inherent  in  every  Protestant  church." 

Dr.  Morris'  Ecclesiology,  p.  121. 


Zbc  Morl^  fiDovce;  flDuet  tbc  Cburcb  Stanb 

Still? 

But  suppose  tlie  confession  of  faith  and  constitution  were 
changed.  The  world  moves;  shall  the  Church  stand  still? 
Every  year  brings  new  light;  must  the  Church  remain  in  dark- 
ness? In  all  else  there  is  progress,  improvement;  why  not  here 
also?  Almost  all  other  Churches  have  at  one  time  or  another 
changed  their  creeds,  and  the  result  is  renewed  life,  growth  and 
prosperity;  shall  this  one  stop,  decay,  and  die?  Says  the  emi- 
nent biblical  scholar  Dr.  Philip  Schaff,  so  much  relied  upon, 
and  so  frequently  quoted  from,  by  counsel  and  their  clerical 
experts: 

"  Revision  is  in  the  air.  Some  years  ago  it  was  the  revision  of  the  Bible; 
now  it  is  the  revision  of  creeds.  The  former  has  been  successfully  ac- 
plished  without  doing  any  harm  either  to  the  Bible  or  Bible  readers;  the 
latter  will  be  accomplished  at  no  distant  day,  with  the  same  result  of 
sundry  improvements  in  minor  details  without  detriment  to  the  sub- 
stance.    *     *     * 

"We  live  in  an  age  of  research,  discovery,  and  progress,  and  whosoever 
refuses  to  go  ahead  must  be  content  to  be  left  behind  and  to  be  outgrown. 
Whatever  lives,  moves;  and  whatever  ceases  to  move,  ceases  to  live.  It  is 
impossible  for  individual  Christians  or  churches  to  be  stationary;  they 
must  either  go  forward,  or  go  backward." 

Schaff,  Creed  Revision  in  the  Presbyterian  Churches,  p.  1. 
Judge   Eanney,   in   14  Ohio  State,  44,  quotes  approvingly 
from  an  early  decision  of   the  Supreme  Court  of  Ohio,  in  a 
contest  as  to  which  of  two  organizations  was  the  "First  Bap- 
tist Church  of  Dayton,"  to-wit : 

"  It  does  not  follow  that  they  lose  their  property  by  ceasing  to  enter- 
tain certain  opinions.     The  declaration  of  faith  under  which  they  were 


36 

organized,  contains  no  attempt  to  bind  them  to  abide  in  the  same  beUef. 
*  *  *  The  opinions  of  such  a  body  cannot  but  change.  To  tix  their 
fleeting  wherries,  to  anchor  them  immovably  in  the  stream  of  time,  is 
beyond  human  power;  for  the  mind  at  least  is  free;  ranging  by  its 
inherent  strength  through  the  boundless  fields  of  knowledge,  molding 
its  belief  according  to  its  apprehension  of  the  truth,  and  incapable  of 
fixedness,  until  the  day  when  all  truth  shall  be  made  known.  And  if 
it  were  possible,  it  were  wrong ;  to  limit  activity  of  mind,  is  to  set 
boundaries  to  human  knowledge." 

Keyser  vs.  Stensifer,  6  Ohio  Rep.,  3G3. 

In  case  of  Methodist  Cliureh  vs.  "Wood,  5  Ohio,  288,  the 
court  decided  that  those  who  seceded  from  the  church  were 
not  entitled  to  any  portion  of  the  property  of  the  society  from 
which  they  seceded,  and  gave  as  its  reason  therefor,  that  "ihc 
efforts  of  the  dissatisfied  members  were  not  directed  ivithin  the 
Church  to  effect  a  reformcdion  in  its  government  cind  discipline, 
according  to  the  usages  of  the  society,  to  conform  to  their 
wishes." 

It  is,  therefore,  not  only  ^permissible,  but  advisable,  to 
work  -within  a  church  for  "reformation  in  its  government  and 
discipline." 

These  very  questions  were  discussed  by  Chief  Justice  Lou- 
rie  in  McGinnis  vs.  Watson,  41  Penn.  St.,  p.  282,  and  we  quote 
a  few  sentences,  in  the  hope  that  they  may  induce  the  Court  to 
read  the  whole  opinion: 

"To  say  that  the  Church  may  not  change  its  doctrines,  practices,  etc., 
would  be  to  impose  a  law  upon  churches  that  is  contrary  to  the  very  nature 
of  all  intellectual  and  spiritual  life,  for  it  would  forbid  both  growth  and 
decay:  not  prevent,  for  that  would  be  impossible.  *  *  *  The  fact  is,  that 
from  the  very  origin  of  Christianity,  changes  have  been  continually  going 
on  in  the  Christian  church  in  all  its  branches,  congregations  and  members 
without  producing  a  forfeiture  of  the  property  held  by  even  those  in  which 
the  change  has  been  most  decided.  *  *  *  ^11  history  reveals  the 
Church  to  us  as  an  institution  that  is  continually  educating,  developing 
and  changing  society,  and  changing  with  the  changes  it  produces,  and  this 
right  to  change  is  a  jjart  of  its  freedom." 

And  the  following  is  particularly  applicable  to  the  present 
controversy : 

"  No  doubt  the  consciences  of  many  are  offended  by  the  changes  they 
witness  around  them,  and  very  often  this  is  so  when  those  changes  consti- 
tute a  real  and  valuable  progress.  Such  changes  often  operate  very  hardly 
upon  those  who  fall  in  tlio  roar  of  the  social  movement;  but  no  law  can 


,37 

cure  this,  which  many  individuals  and  classes  feel  as  an  evil.  The  pro- 
gress of  the  race  cannot  be  stopped  because  there  are  many  who  cannot 
keep  up  with  it." 

The  Constitvition  of  the  United  States,  pronounced  by 
Gladstone  "the  most  wonderful  work  of  man,"  not  only  pro- 
vided for  amendment,  but  seemed  to  require  amendment  the 
first  year  after  its  adoption,  when  a  most  important  addition, 
to-wit,  the  bill  of  rights,  was  adoj^ted. 

Commenting  upon  the  fifth  article  of  the  Constitution, 
Judge  Story  says: 

"A  government  which,  in  its  organization,  provides  no  means  of  change, 
but  assumes  to  be  fixed  and  unalterable,  must,  after  awhile,  become  wholly 
unsuited  to  the  circumstances  of  the  nation  ;  and  it  will  either  degenerate 
into  a  despotism,  or  by  the  pressure  of  its  inequalities  bring  on  a  revolu- 
tion. It  is  wise,  therefore,  in  every  government,  and  especially  in  a 
republic,  to  provide  means  for  altering  and  improving  the  fabric  of 
government,  as  time  and  experience,  or  the  new  phases  of  human  affairs, 
may  render  proper,  in  order  to  promote  the  happiness  and  safety  of  the 
people." 

And  again: 

"We  cannot  too  much  applaud  a  constitution  which  thus  provides  a 
safe  and  peaceable  remedy  for  its  own  defects,  as  they  may,  from  time 
to  time,  be  discovered." 

Story,  Com.  on  Constitution,  679-682. 


But  the  real  trouble  in  the  Church  was  not  one  of  doctrine, 
government,  or  polity:  it  was  the  construction  and  enforce- 
ment of  the 

Clause  acjainst  Secret  Combinations. 

As  we  have  already  seen,  this  question  did  not  trouble  the 
early  Church,  and  the  rule  against  secret  societies  does  not 
appear  in  the  Disciplines  prior  to  1829,  nor  in  the  Constitution 
of  1837.  But  the  trouble  began  with  the  insertion  into  the 
Constitution  of  1841  of  the  vague,  unmeaning  clause:  "There 
shall  be  no  connection  with  secret  combinations."  What  was 
meant  by  "secret  combinations"  ?  and  what  by  "no  connec- 
tion"? Upon  whom  was  the  restriction?  The  General  and 
Annual  Conferences,  or  the  membership?  As  churches  were 
4 


38 

then  l)eginiiing  to  have  secret  societies  within  the  church,  or 
tributary  thereto,  and  sucli  was  the  plain  reading  of  the  words, 
it  sccnu'iJ  that  the  prohibition  was  against  any  official  con- 
nection between  the  Conferences  and  "secret  combinations," 
whatever  they  might  be.  On  the  other  hand,  it  was  stoutly 
maintained  that  it  was  meant  to,  and  did  apply,  to  the  mem- 
bership. 

Certain  it  is,  that  the  subject  soon  became,  and  until  the 
secession  of  one  of  the  parties  to  the  controversy,  continued 
to  be,  the  unfortunate  source  of  constant  discussion,  dispute, 
and  irritation  in  the  Church.  Not  only  the  General,  but  most 
of  the  Annual  Conferences,  tried  their  hands  at  its  construc- 
tion ;  defining,  enlarging,  or  limiting  its  meaning,  as  their 
convictions  and  feelings  on  the  question  from  time  to  time 
prompted.  Even  "the  little  conference  around  the  York  cor- 
ner," seceding  because  of  change,  tried  its  hand  at  construing, 
defining,  and  changing  the  meaning  of  the  words  "secret 
combinations."  [  See  their  Conference  Proceedings,  page  41.  ] 
And  this,  notwithstanding  Judge  Lawrence's  assertion,  that  io 
dejine  is  io  cJkiikjc,  and  fo  chaiujc  is  to  riokite  ihc  consiiiidion. 

The  controversy  touching  this  provision  grew  so  bitter 
that  it  became  absolutely  necessary  for  the  peace  and  well- 
being  of  the  Church,  that  the  matter  be  finally  and  definitely 
settled,  and  that  the  Church  declare  in  clear,  unmistakable 
language  what  was  its  real  belief  on  the  (piestion,  and  what 
the  true  rule  of  conduct  to  be  enforced  in  the  Church.  This 
was  done  in  the  Constitution  of  1889,  as  follows: 

"We  declare  that  all  secret  combinations  which  infringe  upon  the 
rights  of  those  outside  their  organization,  and  whose  principles  and  prac- 
tices are  injurious  to  the  Christian  character  of  their  members,  are 
contrary  to  the  word  of  God,  and  that  Christians  ought  to  have  no 
connection  with  them." 

"The  General  Conference  shall  have  power  to  enact  such  rules  of 
discipline  with  respect  to  such  combinations  as  in  its  judgment  it  may 
deem  proper." 

Tliis  is  H  decided  improvement  in  language,  and  yet  no 
aljandonment  of  the  old  principles  and  faith  (^f  the  Church. 
It  is  clear,  strong,  unmistakable  in  its  condi^nnation  of  what 
was  conceived  to  be  wrong,  and  in  enforcing  the  duty  of  the 


39 

-membership  in  relation  thereto.  And  then  it  provides,  in  a 
reasonable,  practicable  way,  for  its  enforcement,  by  giving  the 
power  to  the  General  Conference  to  enact  such  rules  as  may, 
from  time  to  time,  become  necessary  or  proper  to  enforce  its 
observance  by  the  Church. 

As  indicating  how  closely  the  new  constitution  kept  within 
the  line  of  the  old  principles  and  faith,  compare  the  above 
article  of  the  new  constitution  with  the  following  interj^reta- 
tion  put  on  the  old  constitution  by  the  General  Conference 
of  1885,  and  placed  in  the  Discipline  as  the  law  of  the  Church, 
prior  to  the  Conference  at  Fostoria: 

"A  secret  combination,  in  the  sense  of  the  constitution,  is  a  secret 
league  or  confederation  of  persons  holding  principles  and  laws  at  variance 
with  the  word  of  God  and  injurious  to  Christian  character,  as  evidenced 
in  individual  life,  and  infringing  upon  the  natural,  social,  political,  or 
religious  rights  of  those  outside  its  pale." 

See  Discipline  1885,  page  82. 

4 


Secession.— IRiobte  of  Secebers. 

On  the  question  of  the  adoption  of  the  revised  constitution, 
etc.,  in  the  Conference  of  1889,  the  vote  stood:  yeas,  110;  naijs, 
20.  Of  the  latter,  five  remained,  and  cheerfully  acquiesced  in 
the  will  of  the  majority.  But  to  quote  from  "An  Outline  His- 
tory of  Our  Church  Troubles,"  written  by  one  of  the  delegates: 

"  One  missionary  bishop  and  fourteen  delegates  who  had  voted  in  the 
negative,  on  the  confirmation  of  the  work  of  the  Commission,  withdrew 
from  the  lawful  place  and  lawful  General  Conference,  and,  securing 
another  hall,  in  another  iKirt  of  the  city  of  York,  proceeded  to  organize 
another  body  and  Church;  claiming  that  they  were  and  are  the  original 
and  only  true  Church  of  the  United  Brethren  in  Christ.  This  small 
minority — far  less  than  a  quorum  of  the  General  Conference  ;  without  rec- 
ords, without  a  secretary,  without  anything  to  show  that  it  had  any  con- 
nection with  or  standing  in  the  Church  of  the  United  Brethren  in  Christ 
—arrogated  to  itself  the  absurd  and  ludicrous  prerogative  of  declaring 
that  the  very  body  out  of  which  the  little  faction  had  crept,  had  turned 
itself  out  of  the  Church,  whose  highest  representative  it  was,  and  whose 
overwhelming  sentiment  it  had  the  honor  to  reflect." 

These  seceders  seem  to  have  forgotten  the  solemn  warning  of 
their  own  Discipline:  "If  we  are  united,  what  can  stand  before 


40 

lis?     If  we  are  divided,  we  shall  injure  ourselves,  the  work  of 
God,  and  the  souls  of  our  people." 
Discipline,  1885,  page  78. 

The  Church,  it  is  conceded,  was  united  in  1885,  and  both 
I^rties  united  in  the  Fostoria  Conference,  but  the  final  vote  on 
the  Commission  showed  the  defendants  in  a  hopeless  minority. 
It  being  in  the  court  of  last  resort,  they  could  not  appeal,  except 
to  the  membership  of  the  Church.  This  they  did,  by  entering 
their  protest  in  the  journal  and  publishing  an  address  to 
the  Church.  This  carried  the  question  back  to  the  people, 
who  had  four  years  for  discussion  and  consideration,  and  finally 
the  oi)portiinity  to  reverse  the  decision  and  action  of  the  Con- 
ference of  1885  in  either  or  both  of  two  ways,  to-wit:  fiirst,  to 
vote  down  the  proposed  amended  constitution  and  confession  of 
faith;  second,  to  elect  only  such  delegates  to  the  Conference  of 
1889  as  would  vote  to  reverse  and  nullify  the  former  proceed- 
ings. But  the  people  did  neithee.  On  the  contrary,  they 
adopted  the  proposed  amendments  by  a  vote  of  ten  to  one  and 
sent  110  delegates  to  sustain  it,  against  20  who  opposed  it. 
But  it  is  said  that  those  opposed  to  the  work  of  the  Commis- 
sion refused  to  vote  upon  the  constitution  and  confession ;  but 
it  is  admitted  that  they  voted  for  delegates  to  the  General  Con- 
ference. The  whole  vote  cast  for  and  against  the  constitution 
was  54,344;  the  whole  number  cast  for  delegates  was  58,839, 
showing  they  numbered  only  4,495;  adding  these  to  the  3,G59 
who  voted  against  the  constitution  makes  8,154.  So  that  if 
they  had  all  voted  against  the  constitution  it  would  still  have 
been  carried  by  42,531  majority,  or  say  by  six  to  one. 

In  this  we  make  no  account  of  the  fact,  that  in  five  Con- 
ferences, controlled  by  the  defendants,  they  refused  to  appoint 
tellers  to  count  the  votes  cast  on  the  work  of  the  Commission. 
They  voted  for  delegates,  however,  casting  7,251  votes,  in- 
cluded in  figures  given  above.  Outside  of  these  Conferences, 
the  vote  on  Commission  was  52,350,  and  the  votes  for  delegates 
51,802-  that  is,  outside  of  these  five  Conferences,  wdiere  the 
people  were  disfranchised,  the  vote  on  the  Commission  was 
548  more  than  that  cast  for  election  of  delegates  to  the  General 
Conference. 


41 

Now,  the  General  Conference  of  1889  was  elected  under  the 
old  constitution  and  laws,  and  was  as  regular  and  legal  in  every 
way  as  any  that  ever  preceded  it.  Indeed,  no  one  then  ques- 
tioned, as  no  one  now  disputes  the  fact,  that  it  was  the  true  and 
lawful  General  Conference  of  the  United  Brethren  Church, 
with  power  to  legislate  and  decide  for  the  whole  society.  The 
fifteen  delegates  who  seceded  recognized  all  this  by  appearing 
and  taking  their  seats  in  the  Conference  and  participating  for 
several  days  in  its  discussions  and  deliberations.  Those  who 
refused  to  vote  on  the  amendments  sent  remonstrances,  which 
were  read  and  referred.  So  in  this  way  and  through  their  rep- 
resentatives, they  had  their  day  in  court.  Had  they  secured  a 
majority  in  favor  of  their  views,  they  would  have  remained,  and 
all  would  have  been  well  with  them,  however  ill  with  the 
Church.  But  they  found  themselves  in  a  more  hopeless 
minority  than  four  years  before,  to-wit:  about  one  to  eight. 
Instead  of  yielding,  as  the  minority  sometimes  must,  and  con- 
tinuing the  fight,  as  they  could,  within  the  Church,  and  again 
appealing  to  the  people,  or  going  to  the  civil  courts  for  a  redress 
of  their  supposed  grievances,  they  withdrew  and  set  up  for 
themselves,  and  became,  if  we  are  to  credit  the  astounding  state- 
ment of  Counsel  for  defendants,  "  the  only  true  General  Con- 
ference of  the  whole  Church."  To,  an  objection  that  15  was 
hardly  a  quorum  of  131,  Judge  Lawrence  refers  to  the  Thirty- 
seventh  Congress,  when  the  House  decided  that  "a  majority  of 
the  members  chosen  and  loijal  constituted  a  quorum,"  and,  as- 
suming that  his  fifteen  clients  were  the  only  loyal  delegates, 
claims  that  they  constituted  a  quorum,  legally  authorized  to 
legislate  for  the  whole  Church.  Unfortunately  for  this  in- 
genious argument,  his  reference,  Barclay's  Digest,  p.  191,  does 
not  sustain  his  statement,  and  does  not  use  the  word  "loyal" 
at  all:  the  rule  adopted  being  that  a  majority  of  all  elected 
shall  constitute  a  quorum,  and  applying  this  to  the  case  at 
bar,  sixty-six  luoald  be  required  to  constitute  a  quorum!  In- 
deed, the  law  is  too  well  established  to  need  discussion,  that 
in  the  absence  of  an  express  provision  to  the  contrary,  it 
requires  a  majority  of  the  whole  number  constituting  a  delib- 
erative body  to  make  a  quorum. 


42 

And  now  what  is  the  effect  of  secession  in  a  case  like  this, 
and  what  are  the  property  rights  of  the  seceders? 

Fortunately  the  Supreme  Court  of  the  State  of  Ohio  has 
answered  the  question:  "Members  who  secede  from  church  or- 
ganization thereby  forfeit  all  right  to  any  part  of  the  church 
property." 

Wiswell  vs.  First  Congrej^ational  Church,  li  O.  S.,  32. 
M.  E.  Ch.  vs.  Wood,  5  Ohio,  283. 
Same  vs.  Same,  Wright,  12. 

And  elsewhere  the  courts  have  held  even  more  strongly : 

McGinnis  vs.  Watson,  41  Pa.  St.,  9. 

Den  vs  Botton,  12  N.  J.  I.,  205. 

As.  Ref.  Ch.  vs.  Theol.  Sem.,  4  N.  J.  Eq.,  77. 

And  if  the  Court  cares  to  look  at  still  other  authorities,  sus- 
taining the  same  proposition,  they  may  be  found  in  Judge 
Lawrence's  articles,  written  before  he  was  employed  to  give  an 
opinion  in  this  case,  on  "The  Law  of  E-eligious  Societies," 
published  in  American  Law  Register.     (See  volume  21,  page 

362.) 

Respectfully  submitted. 

GUNCKEL  &  ROWE, 

'  Of  Counsel  for  Plaintiffs. 


DATE  DUE 

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PHOTOMOUNT 
PAMPHLET  BINDER 

;  6AY4.0RD  BROS.  In*. ; 
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Stodrtwr,  C«MI> 


,  BX9875.A5G9 

,%-v  Court  of  Common  Pleas :  The  church  of 

»    \  Princeton  Theological  Semmary-Speer  Library 

>''.  Illllll  lllllllllll  IMIIIIIIIIIIIIIIIIIIllliiiliiiiiiiiiiiiiii 


